(after stating the facts).
“Having the right to refuse altogether, they must have the right to refuse except upon just such terms and conditions as they saw fit to require.”
See, also, Lake Shore, etc., R. Co. v. Perkins, 25 Mich. 329 (12 Am. Rep. 275.
Many authorities upon this point are cited in the defendant’s briefs, among which are Stephens v. Railway Co., 109 Cal. 86 (41 Pac. 783, 29 L. R. A. 751, 50 Am. St. Rep. 17); Hartford Fire-Ins. Co. v. Railway Co., 175 U. S. 91 (20 Sup. Ct. 33); Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498 (20 Sup. Ct. 385); Quimby v. Railway Co., 150 Mass. 365 (23 N. E. 205, 5 L. R. A. 846). The late case of Russell v. Railway Co., 157 Ind. 305, 316 (61 N. E. 678, 55 L. R. A. 253, 87 Am. St. Rep. 214), is directly in point.
The court read to the jury that provision of the contract exempting it from loss by fire, and then said to them that it was for them to determine whether the loss came within the contract. The vice in this instruction lay in the fact that it did not instruct the jury that the contract relieved the defendant from its negligent acts. It was clearly the duty of the court to so instruct the jury. The court’s instruction upon this point was as follows:
“ It will be for you to say as to whether, taking everything into consideration, — the entire surroundings, the entire evidence in the case, — it was the contemplation of the parties, according to this contract, that the plaintiffs in this case were to assume and bear the burden of any loss that might result because ‘of the increased danger to the defendant by putting in and operating these two new side tracks; and if this loss, as I say, was caused by reason of the proper operation and necessary management of cars on those two tracks, or either of them, why, the plaintiffs haven’t any right to complain in this case; and in that case, if you so find, and find that is established by*220 the evidence in this case, by a fair preponderance of it, the plaintiffs cannot recover.”
The plaintiffs did assume the increased danger, and the exemption from liability agreed upon was not limited to losses caused by the “proper operation and necessary management of its cars.” There was no ambiguity in the contract, and its construction belonged to the court.
Did plaintiffs contract to do nothing more than- to place this material there and leave it ? Ata very small expense it could have been covered with sand or dirt or cinders for a sufficient distance alongside the track to prevent fires. Or, as we know is often done, barrels of water could have been kept in such dangerous places near the track, ready for instant use. Or, knowing the increased danger on account of the wind, and the extreme dryness of the combustible material, a man could have been employed to watch during the short time used in switching. According to the plaintiffs’ own witnesses, they knew that fire escaped from this engine several days before, and had set fires alongside the track; they knew that the wind, as one of the witnesses said, “ was blowing a gale;” and yet they ordered the defendant to enter upon the premises to do the work under the contract. It seems to me too clear for further argument that plaintiffs did not comply with the contract, and that they failed to do the very things which the contract contemplated they should do, and which, if done, would have avoided the loss. It is no reply to the obligation of the plaintiffs under this contract to say that it is customary for mills like that of the plaintiffs to scatter this combustible material about their yards. Let this be granted, and it follows that this is the very condition against which the parties contracted, and imposed upon the plaintiffs the duty to obviate the danger and to assume the risk. If this mill had been the property of the defendant, and the land where the lumber was piled that of plaintiffs, and the fire had caught in this material upon the defendant’s land, and spread to the lumber piles on the adjoining land, the railroad company could not have defended upon the ground that they used an approved engine and managed it properly. It would have been negligence to leave such inflammable material in close
“ I spoke to the engineer about being careful about working his engine. I told him we had had a fire the day preceding, and the Saturday before that, right after his engine went by, and I told him — the wind was blowing very hard, and it was very dry — I would like to have him be careful working his engine in going by the corner. He gladly told me he would do so.” 1
It thus conclusively appears that plaintiffs, according to their own testimony, knew that this engine threw sparks; that it was apt to set fire; that they not only made no objection or protest, but, with full knowledge of the facts, not only invited, but directed, the defendant to bring it upon the premises to do their work, and at a time when the danger was greatly increased by the wind blowing, as this witness said, “a gale.” The engine was properly managed, as the jury have found, and was therefore managed as plaintiffs, through their foreman, requested it should be. These facts bring the case within the rule of Marquette, etc., R. Co. v. Spear, 44 Mich. 169 (6 N. W. 202, 38 Am. Rep. 242); Spear v. Railroad Co., 49 Mich. 246 (13 N. W. 610). In that case the same defect was claimed as in this, with the same result following, namely, throwing sparks which caused fires. In that case Mr. Spear called the attention of the proper railway officials to this fact, and they promised to fix it, but “ put off the fixing.” In the opinion the court say:
“ It seems almost unnecessary to do more than to recite*225 this evidence in order to dispose of the case. Instead of showing a cause of action, it effectually disproves the existence of one. This was not the case of a defective locomotive moving through the country, and scattering desolation among those to whom its proprietors owed the duty of a care corresponding to its dangerous nature, but it was a case of private employment, whereby the proprietors of the engine were solicited to send it upon the private business of the employers into a place where the latter well knew, and had for a long time known and understood, it was likely to do mischief.”
Instead of instructing the jury in accordance with that case, the court instructed them as follows:
“If the conditions at the time indicated that to switch the cars on Mann, Watson & Co.’s premises would be attended with unusual risk of setting fire, it was negligence on the part of the railroad company to do the switching at that time.”
It was not the fault of the defendant that its engine was there. It was not the duty of the defendant to refuse the use of its engine when requested. By the terms of the contract, it was bound to furnish it. Presumably, the plaintiffs knew the condition of the ground better than did the defendant’s employés. They knew the danger, and, if they did not desire to have the work done then, it was their duty either to keep the engine away, or protect the premises from the dangers incident to its use, and covered by their contract. If either was negligent for the switching under these conditions, it was the plaintiffs, not the defendant.
Under the above disposition of the case, it is unnecessary to determine whether there was evidence of negligence to submit to the jury.
Judgment reversed, and no new trial ordered.