107 Mich. 16 | Mich. | 1895
Plaintiff, as administratrix, sues to recover damages for the death of her husband, alleged to have been caused by the defendant’s negligence.
The deceased was a conductor on a freight train of the defendant company, and the injuries resulting in his death were caused by his being thrown off the rear end of the way car to the track, and the train passing over him. The oar from which he was thrown had hand rails provided on either side of the steps, the rear hand rail extending to the brake, so that a sudden lurch of the car would not result in throwing one attempting to alight from the car. On the occasion in question, however, this rear hand rail had been removed, and the testimony offered by the plaintiff tends to show that while deceased was stepping down from the oar he was thrown off because of this defect. There is no room for attributing any negligence to the defendant, unless it be for the absence of this hand rail at this time.
A few days before the accident, deceased and his trainmen, when using the way car in question, allowed it to
The plaintiff’s counsel recognize the general rule that the servant who engages in the use of, or continues in the use of, defective machinery o-r appliances, assumes the risks incident to the employment, but seek to bring this case within the exception to the rule which -obtains in case the servant has been induced to continue the use of the defective appliances by reason of the master’s promise to repair. The present case is not within any such exception to the rule. No one representing the master had induced deceased to continue in the use of the car in its then condition. The employé in the oar repair shop certainly gave deceased no such directions. On the contrary, he was acting under instructions received from the deceased. The statement of the assistant superintendent, so far from being authority to continue the use of the car, was more in the nature of a rebuke for using it in its then condition. The most that can be said is that the company might have been negligent in not repairing
The judgment will be affirmed.