49 Mich. 573 | Mich. | 1883
Tbe following short but clear statement of tbe facts in tbis case, and of tbe plaintiff’s declaration, is taken from tbe brief of counsel for tbe defendant.
On tbe twelfth day of April, 1881, tbe plaintiff was seriously injured, in coupling cars, at Monroe, in tbis State, and this action is brought to recover for such injury. He entered into the employ of tbe defendant about tbe twenty-fourth day of June, 1880, as brakeman, and was employed as such upon a passenger train exclusively, until
This order was occasioned by a change in the running of freight trains through to Detroit without stop at Monroe, thus leaving no freight crews at Monroe to do the yard work. After this order came out, the plaintiff, and the crew with which he was connected, was first at Monroe, on Monday, the eighth day of February. His crew consisted of Charles Luce, engineer; Joseph Nopper, fireman ; Isaac Gifford, baggageman; and himself as brakeman. The baggageman ran only between Adrian and Monroe, and was with all the crews. Upon arriving at Monroe, on the morning of the eighth of February, the plaintiff was shown the order of the superintendent inquiring the crews to do yard work. He made some objection, but finally went to work with the rest of the crew, and so continued, every third week until he was hurt on the twelfth of April, while coupling a Flint & Pere Marquette car loaded with lumber to an empty box car. This lumber car was so loaded that the lumber projected over the end and the plaintiff was hit by the projecting lumber, knocked against the ladder of the box car, and thrown down, and, it is
The plaintiff recovered and the defendant assigns error as follows: First, That the court erred in allowing the plaintiff to state what he said when the order of Superintendent Charlesworth was presented to him requiring him to do yard wort at Monroe. "We are of opinion that it was proper to allow -the plaintiff to prove that, at the time this order was first presented to him, he objected to going, into the yard. The theory of the plaintiff’s case was, that he had been employed as a brakeman upon a passenger train, and within the scope of such employment he could not be called upon, or rightfully required to perform services of a ■different character, or more dangerous. And he had a right to show that he did not consent or agree to the change or the performance of extra duties, and this he could show by what he said at the time. A party can always show by his own testimony that he did not enter into a particular agreement, or that he did not voluntarily and freely enter upon a discharge of the new duties imposed, by showing what he said at the time.
We discover no legal objection to the question asked the witness Gifford as to what were the duties of a passenger brakeman. It was proper to show what the duties of a passenger brakeman were, for the purpose of ascertaining in what manner the new duties imposed differed therefrom, and this could be shown by persons familiar therewith, in practice, as the rules of the company would not be conclusive thereon.
The question asked this witness whether or not in his opinion the order referred to called him out of the line of his duty, was wholly immaterial and we cannot see how his answer thereto could in any way prejudicially affect the defendant. The questions asked this witness whether this order called plaintiff out of the line of his duty were not excepted to and need not be passed upon.
The material and important question raised is whether
I find nothing in the written contract
The contract seems to be according to a form adopted by the company for its employees to sign, and is meant to be applicable to the different kinds of employment. The general language thereof is equally applicable to engineers,
The general language used under which he agrees to obey all rules, etc., must be held to apply only to such rules and* regulations as. pertained to the duties of his employment,, and the company could not thereunder assign to him the-performance of other and different duties wholly disconnected therewith or differing therefrom. So the parts* thereof requiring him to use care and caution, while applicable to anything he might undertake to do, must still-leave the question an open one for the consideration and determination of a jury as to whether he had violated the-same or not, and this the court fairly submitted to the jury.. The order Referred to did not upon its face purport to make-any permanent .change in the character of the plaintiff’s employment. He remained thereafter, as he was before, a passenger brakeman, with this additional labor added thereto.. It is true that the plaintiff could have declined to comply with this order, and it is equally true, as appears from the-evidence, that had he done so, he would have lost his position as a brakeman upon the passenger train. I am of opinion therefore that this case comes within the rule laid down in Chicago, etc. Ry. Co. v. Bayfield 37 Mich. 205, and that much of the reasoning in the opinion in that case is-equally applicable here and need not be repeated.
I have -carefully examined the charge of the court and am of opinion that it was even anore favorable to the defendant than the facts would have warranted. The only wonder is that the plaintiff recovered under the charge as-given.
The contract reads as follows :
“Form 1287. Dated at Adrian, Michigan, June 24, 1880.
I, the undersigned, having been employed in the service of the-Lake Shore & Michigan Southern Railway Company, hereby acknowledge the receipt of a copy of the printed orders, rules, and regulations of said ■company. Also a copy of this agreement, and do hereby agree with it ■in consideration that it will pay me the wages stipulated ; that I will, so long as 1 remain in its service, faithfully respect and obey all said orders, rules, and regulations, and all others which may be adopted and of which I may have notice. And I do further agree that I will for myself, •in all cases before exposing myself in working or being on the tracks or .grounds of the company, or in working with or going in any manner on or with its cars, engines, machinery, or tools, examine for my own safety the ■condition of all machinery, tools, tracks, cars, engines, or whatever I may undertake to work upon or with, before 1 make use of or expose myself on or with the same, so as to ascertain, so far as Treasonably can, •their condition and soundness, and that I will promptly report, either to the superintendent of the company or to its agent who may be my immediate superior officer, any defect in any track, machinery, tools, or ■property of the company, affecting the safety of any one using or operating upon or with the same. The object of this agreement being first, to protect me from suffering personal injury from any cause ; second, ¡that while the company will be responsible to me for the discharge of all its duties and obligations to me, and for any fault or neglect of its own, •or of its board of directors or general officers, which are the approximate cause of the injury, yet it will not be responsible to me for the consequences of my own fault or neglect, or that of any other employees of ■the company whether they, or either of them, are superior to me in authority as conductor, foreman, or otherwise or not, it being expressly agreed on the part of the company that it is my right and duty under all circumstances to take sufficient time before exposing myself, to make such examination as I have here agreed to, and to refuse to obey any order which would expose me to danger.
“Witness: D. McKey. Omer J. Jones, Brakeman.”