93 Mich. 370 | Mich. | 1892
Plaintiff brought this suit to recover damages for an injury to himself, claimed to have been caused by the negligence of the defendant. At the close of the
Plaintiff was foreman of section 9 of the defendant’s road, and at the time of the accident had been so employed ■ for 13 years. He continued in its employment in the same capacity for three years afterwards. It was his duty, in connection with other trackmen who were under his control, to go over the section in the morning, and inspect it. For this purpose the ordinary hand-car was furnished by the defendant. When going through cuts and similar places it is the custom for part of the workmen on the hand-car to face one way„ and part the other. This is to. enable the men to watch for trains in each direction, and to stop in time to remove the hand-car, and avoid danger. This course is prompted by common prudence. Time cards of regular trains were furnished these section men, with rules printed thereon for their guidance. One of these rules reads as follows:
“No notice whatever will in any case be given of the passage of extra trains, and trackmen' will govern themselves accordingly.”
This rule had been in force during the entire period of plaintiff’s employment, and he was perfectly familiar with it.
The cut near which the accident happened was of the-average depth of 16 feet, and ran in a curve somewhat in the shape of the letter “S,” with a down grade to the east. Plaintiff started out about 7 o’clock a. m., alone, to make the required inspection. He set the men who were under him at work in the yard at Brighton. The only reason given for going alone was, “We were short of help.” No. rule of the company is shown requiring him to go alone, and no superior officer directed him to do so. After setting his men to work, he went to the baggage-room, and took a rail
The learned circuit judge was correct in directing a verr diet for the defendant, for the following reasons:
1. Plaintiff did not use the means provided for him by the defendant for the purpose of making the inspection. He was not required to go alone. No necessity existed for his going alone at this particular time. He chose to take a conveyance which could carry but one, instead of taking the one provided by the company, with which he could have made the inspection in the usual manner, and with safety.
3. He assumed the risks of the business, of which the passage of extra trains without blowing a whistle or ringing a bell was one. He knew the rules of the company, and agreed to them, and worked under them for 13 years without protest. They were not of such a character as to be void because against public policy. The fact that he had worked under them for 13 years without accident shows that they were not of an extremely dangerous character, and that, with proper precautions on the part of employes, danger could be averted. Plaintiff knew that extra trains were liable to come at any time. He was bound to exercise the same care that he would have done if he had been notified at the station that an extra train was on the road.
Judgment affirmed.