128 Mich. 669 | Mich. | 1901
(after stating the facts). It does not appear to be questioned that the relation of the defendant to this operation was such that it owed a duty of reasonable care to the plaintiff, as to which question see Roddy v. Railway Co., 104 Mo. 234 (15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. Rep. 333).
As to the contention that it is not the theory of the declaration that the defective brake was the proximate cause of the injury, we do not agree with the defendant’s contention. The declaration sets out the duty of the defendant to provide a car equipped with a safe brake, and the breach of this duty, and, in orderly sequence, the events which followed.
The contention that there was no proof of defendant’s negligence need not be met by extended discussion. This is not a case where the injury is to an employé of the defendant, but the duty owed to this plaintiff, and to those engaged with him in the operation, was to supply in the first instance cars properly equipped. This is the breach of duty which the jury found, and previous notice to the defendant of a neglect of that duty was not essential.
The question of contributory negligence of the plaintiff is closely allied to this. The plaintiff was called upon to act in an emergency, in an attempt to save the property of his employer and of the defendant. A moral obligation rested upon him to act as a prudent man, having regard for the interests of his employer, might be expected to act under like circumstances. If he did not go beyond this, he was not guilty of contributory negligence. See a full discussion of this subject in 1 Thomp. Neg. § 199.
We think no error was committed to the prejudice of the defendant, and the judgment will be affirmed.