McGinnis v. Canada Southern Bridge Co.

Cooley, J. The defendant corporation owns and operates a .railroad across the Detroit river by way of Grosse Isle. The plaintiff, then twenty years and six months old, engaged in the service of defendant as switchman in December, 1879. He was inexperienced at the time, and the yard-master explained his duties to him. In January, 1880, when he had been employed a little less than two months, his foot was caught in a “ frog ” while he was engaged about his work, and before he could extricate it an engine ran upon him, inflicting serious injury. Plaintiff understood the danger from frogs before this accident took place, knew that injuries sometimes occurred from persons getting their feet caught in them, and testified .that he tried to avoid the danger. After the injury he claimed compensation from the railroad company, and by next friend instituted this suit. I In the trial court the plaintiff claimed to recover on two grounds: 1. That he, being immature and inexperienced, was sent by defendant into danger the full extent of which he did not comprehend, and that this was culpable fault on the part of the defendant which should render it liable for all injurious consequences. 2. That there was a well-known and simple device, the use of which would have precluded the danger from which the accident resulted, and that the defendant was negligent in duty to its servants in not procuring and making use of this device, and responsible by reason of that neglect for the injury. The first ground was shown to be untenable by the plaintiff’s own evidence. He was past twenty years of age; was not shown to be wanting in average intelligence of those of his age, and his duties were explained to him when he entered npon the employment. He besides understood the very danger into which he fell, and had in mind the purpose to avoid it. It was thus made to appear by his own examination that he was not sent into unknown dangers, and that he was not exposed to risks which he, through immaturity or for any other reason, failed to comprehend. [470] To furnish support for the second ground, evidence was introduced that there is a simple device known as blocking the frogs, which is a protection against such accidents as the one from which the plaintiff suffered; that this consists in fitting into the frog a piece of wood cut to its shape; that this device at the time of the accident was in use on roads in Canada and was also used to some extent by railroad companies in the United States. It was not shown or claimed that the device was in general use; but plaintiff insisted that his evidence showed that its use would give effectual protection, and he claimed the right to go to the jury on the question whether defendant was not negligent in failing to adopt it. The circuit judge did not assent to this view, and directed a verdict for defendant. The circuitTjudge in making this ruling was guided by the decision of this Court in Fort Wayne, etc. R. R. Co. v. Gildersleeve 33 Mich. 133. In that case an action was brought against a railroad company to recover damages for an injury to the plaintiff, who was a switchman in its service, and had been injured while coupling cars. The breach of duty charged against the railroad company was, that it allowed the use on its road of cars with coupling apparatus of different heights, the effect of which was to expose switchmen to peculiar perils. It was while coupling two of unequal height that the plaintiff was injured. In the decision of the case in this Court it was shown that the question involved was not one peculiar to railroad companies, but that it concerned the employer of labor in every branch and kind of business, and that to sustain the plaintiff’s case it would be necessary to hold that the employer is under obligations to his servants under all circumstances to make use of the safest known appliances and instruments,' and is responsible for any failure to discard what is not such and to supply its place with something safer. Such a doctrine it was said would almost make the employer the guarantor of the servant’s safety while in his service, and would be destructive of the well-established and beneficial rule that [471] the servant accepts the risks of the customary dangers of the service when he accepts the employment. The plaintiff endeavors to distinguish this' case from that of Gildersleeve, but the distinction is not obvious. In this •case as in that the gravamen of the complaint is that the .defendant failed to provide itself with the safest known devices and appliances in its business, and that the plaintiff was injured in consequence. But in both cases it appeared ¡that plaintiff knew and understood what was supplied, and that he voluntarily assumed the employment and encountered the risk for the compensation offered. No fraud, no deception and no concealment was charged against the defendant in either case. In one particular this case falls short of that made by G-ildersleeve. It was made clearly apparent in his suit that the coupling apparatus ought to be on the same level, and the only excuse of the railroad company for making use of a car whose coupling apparatus was not on a level with that of others, was that they had the car on hand. It seemed plain that it would be desirable to discard it if the defendant could afford to do so. But in this case the evidence falls short of making a prima faeie case that it would be desirable to adopt the device of blocking the frogs. There was evidence which tended to show that this device was calculated to prevent such accidents as the plaintiff had met -with, and that to some extent it had been brought into ¡use for that purpose. The plaintiff’s evidence showed, however, that the use had not gone very far, and that nearly all ¡the railroad companies of the country had failed to adopt it. As railroad service is in the hands of experts, and the managers are greatly interested in protecting their men against injury, this failure on their part to adopt and use so simple ¡a device is a very pregnant, fact, and suggests that there must be reasons for it that are controlling. But as this case was disposed of on the plaintiff’s own showing, and without ‘Calling-upon the defense for their reasons, we cannot judicially know what they are, nor could the court below act .upon them. [472] But the court below could not fail to observe that the-plaintiff made no attempt to prove that the device of blocking the frog was a desirable device to adopt in the management of railroads. He did offer evidence that it tended to« diminish or prevent a particular danger; but he did not go further. It is consistent with all that was shown by himi that the adoption of this device would introduce new dangers, more serious than those it would guard against, and that for this reason it was neither prudent nor humane to adopt it. And the plaintiff had no right to ask the court and jury to regard a single consequence of the adoption of' the device, and to condemn the management of the railroad-company on so narrow a view of its conduct, but it was his-business to show that on a survey of the whole field the use-of the block was prudent, and that it guarded against dangers in one direction without the introduction of perils in another. Without that showing it seems very manifest that,, as the evidence stood, there was no case made for the adoption of the proposed device. Railroading is at least a business with many dangers, and! scarcely any machine, implement or expedient made use of' in it but is liable at some times and under some circumstances to imperil human lives. Suppose the block had been made use of and an accident had occurred which was-thought to be attributable to it; how on the plaintiff’s theory would the defendant have excused itself for adopting it ?' A jury verdict in favor of its use in a previous case could', be no protection, for a verdict makes no precedent, and settles nothing but the immediate controversy to which it. relates: the next jury on precisely similar facts is at liberty to find directly the contrary. The defendant would therefore be compelled. to defend its adoption of the block by showing that it tended to make the management of trains, more safe. But if the plaintiff in the suit were to proceed to show — what fully appears in this case — that though the: device had been known for several years the experts in charge of railroads the country over, naturally solicitous as-they must be, on grounds of personal interest if not of [473] humanity, to diminish the risks to life, had failed to be convinced of the expediency of making use of the block, this showing would have made out a case against the defendant which could not well have been answered. The prima fade showing that the device had been hastily if not heedlessly adopted would certainly have been very strong; and if the-two cases charging respectively negligence in rejecting and then in adopting the same device could go to successive-juries, we might witness the instructive result of a verdict, against the defendant in both. But such a result is inconsistent with a proper administration of definite rules of law and justice. It is much safer to hold that, when it appears-the employé is aware, as the plaintiff was, of the risks to which he exposes himself in the service, and consents to-encounter them, his employment subject to the risks cannot be treated as a breach of duty. In Lake Shore etc. R. W. Co. v. McCormick 71 Ind. 440, the same allegation of breach of duty was made as in this-case, and it was held not supported by the facts. The principle of the decision is familiar in this State, and is supported by the following among other eases : Chicago etc. Ry. Co. v. Bayfield 37 Mich. 211; Swoboda v. Ward 40 Mich. 420 ; Quincy Mining Co. v. Kitts 42 Mich. 34; Mich. Cent. R. R. Co. v. Smithson 45 Mich. 219. It is also of general acceptance elsewhere. The judgment must be affirmed with costs. The other Justices concurred.