63 Mich. 121 | Mich. | 1886
Plaintiff sued and recovered below for injuries caused by a fall from a gravel car near Charlotte, Eaton county, on a railroad operated by defendant. The accident happened on July 11, 1885. Plaintiff was one of a gang of laborers engaged in digging gravel in a bank a few rods from the main track. There was a side track run in by the place where they were digging, and the cars were loaded, and then taken out, each man having his place upon, one of the cars, from which it was shoveled off by the same set of men at such places as required it. The cars were the usual Sat cars generally used for such purposes.
On Saturday afternoon, July 11, 1885, a train of eighteen cars had been backed in at the gravel bank, three boarding cara and a way car having been detached and left on the main track by the engine that was to draw out the loaded gravel cars, which were to be attached again to the boarding ears when hauled out, and then the train was to go to Jackson, it being the last load for the day. When the gravel cars were loaded, it was necessary to wait about half an hour for the express train, and the men, instead of waiting on the cars, went out upon the bank to be in the shade, and remained there until ready to start. The ground where
Plaintiff had been working some two weeks in the same gang, and understood the arrangement of the train. He swears that he heard no order to board the train where it was, but went because he saw the other men do so. The men had general orders not to board cars in motion.
The only negligence pointed out by plaintiff’s counsel in this Court was the order by Soper to board the cars, which it is claimed relieved plaintiff of any responsibility for looking after his own safety in getting on by jumping as he did.
It is very doubtful whether the court below meant to leave this question to the jury. The charge as given did not confine the jury to this ground of negligence, but seemed to leave them at liberty to consider other matters. The declaration set out the fashion of the cars as improper, aud various other charges were made, — of undue speed, and a failure to furnish a proper place to board the cars. None of these questions arose upon any evidence before the jury, as there was nothing to authorize any inference of negligence from any of them, and it is not now claimed.
“They said you had a right to obey all legal orders; but if a man was ordered to jump off a train going at the rate of 40 miles an hour, more or less, I suppose he would not have to obey. If the superintendent had ordered the plaintiff to kill himself, he should not do it. He had no right to obey all wrongful orders. He had a right to obey all legal orders.”
This practically deprived the jury of any definite instruction on the subject, and left them to determine for themselves what orders should be obeyed. The court also charged the jury upon the assumption that some special order had been given plaintiff to get on, and that what was said amounted to a definite order. Some of the confusion evidently arose from the fact that counsel, during the charge, interrupted the judge, and held . a discussion with him upon the law and facts, which was not proper, and should not be allowed, as it not only breaks in on the province of the court, but is almost certain to befog the jury. The proprieties of a trial should not be interfered with in this way.
But the court left it to the jury to pass upon other questions of negligence, which it was clearly erroneous to do, as there was no testimony tending to show it.
The defendant’s counsel asked several charges; one that plaintiff could not recover because he had made out no cause of action, and others more specifically pointing out legal questions, which the court was asked to pass upon. These included, among others, contributory negligence, the voluntary assumption <.f the risk, the manifest character of it, and the known opportunity to board the cars in another
In our opinion, the case should not have gone to the jury. The only question presented was whether plaintiff acted in obedience to such an order as would have justified him in assuming a plain and manifest risk to life and limb. It seems to us that the case presents no such dilemma.
He distinctly swears he heard no order whatever, and went because the others went. He does not swear, and the •circumstances show it was not true, that he supposed it was his absolute duty to do as he did, or that he would be left behind or incur any blame or risk if he did not. He knew that the boarding cars were to be taken up, and were not far off. From his own statement, it is clear that he simply acted as he saw others act, and paid no heed to the risk that was patent to everybody'. There was a reason of convenience given, that it was easier to jump on the cars from an elevation than to get upon them otherwise, which may have led to what was done by the men, but which would not make their conduct less reckless. The fact that other people run risks is no excuse. Mich. Cent. R. R. Co. v. Coleman, 28 Mich. 440; Lake Shore & M. S. Ry. Co. v. Bangs, 47 Id. 470; Piquegno v. Chicago & G. T. Ry. Co., 52 Id. 40; Flint & P. M. Ry. Co. v. Stark, 38 Id. 714; Downey v. Hendrie, 46 Id. 498; Mitchell v. Chicago & G. T. By. Co., 51 Id. 236.
The judgment should be reversed, with costs.