Spaven v. Lake Shore & Michigan Southern Railway Co.

Grant, J. (after stating the facts). There is no evidence to show any liability on the part of the defendant the Lake Shore & Michigan Southern Railway Company. It had provided a station room and platform for those who had occasion to depart from and to enter its trains at Ferry avenue. In doing this it had done its full duty. Sturgis v. Railway Co., 72 Mich. 619 (40 N. W. 914); Michigan Cent. R. Co. v. Coleman, 28 Mich. 452. The rear car stopped just opposite this platform. It extended no invitation to plaintiff or any one else to walk along the other track, or to use it as a platform for plaintiff or other passengers who desired to take its train. If it was necessary to walk to the front of the train instead of taking the rear car (there is no evidence to show such necessity), there was ample space between the two tracks, level and smooth, which the plaintiff might have taken.' At the point where he was struck, the distance between the two tracks was 20 feet.' Neither is there any evidence to show such a well-known custom on the part of. passengers to walk down the other track so as to enter the smoking car, — the forward car of the train, — a distance of about 200 feet, as would bind the defendants. Switch engines were liable to come in and go out over these tracks at any time. They were not limited to one track coming in and to the other going out. All they were required to do by rule 14 was to keep entirely clear of all time-card trains, and run cautiously between the points mentioned in the rule, as they might expect to find . the main line occupied. Plaintiff is chargeable with notice that in this busy place these engines were liable to occupy . the tracks at any time. He entered upon this track sup [586] posing, as a matter of course, that the headlight he saw was the headlight of the engine of the train which would take the Lake Shore track. Evidently, had he looked when upon the track on which he was injured, or within 10 feet of it, he would have observed that the engine was upon the track. Furthermore, the switch lights were not turned for the train to go upon the Lake Shore. Upon this point he testified: “I did not observe whether the switches, which were within a few feet of me, were set so the train could get on the Lake Shore. I was off duty. I did not bother my head about it. That was left for the night man to look after.” Two engines were, in fact, coming on defendants’ tracks. He did not look at any time after he had reached a distance of 20 feet from the inbound track.. He testified that, when within 20 feet, he could look about a half mile down the track. He further testified: “I was about 20 feet from the office when I looked to the south and saw the headlight. I had gone about 20 feet towards the tracks when I looked to the south and saw the headlight. I saw them coming that way, and I turned myself and went up the track. At no point after that did I look to the south to see if any train was coming.” That he knew of the extent of the switching appears from his own testimony as follows: “On account of all this switching and moving of trains, engines may be passing there at any moment. They were liable to be switching up there at any time. In the winter time, especially, it is a busy place.” He further testified: “I walked up the incoming main line because there was snow shoveled away on the side of the track more than anything else, and to keep out of the snow.” Plaintiff relied solely upon the fact that the semaphore was dropped, and shut his eyes to all other evidences of the facts surrounding him, and of which he might readily have availed himself, showing that no train was coming [587] upon the Lake Shore track, but that a train was coming on the track over which he was walking. What right had he to assume that the engineer and fireman would look out for him any more than that he would look out for himself ? Evidently the engineer and fireman were not at the moment looking. If this was negligence on the part of the engineer and fireman, was it not equally negligence for him to pay no attention to his surroundings ? What right had he to rely upon the performance of duty by his fellow-servants, — if he was at that time in the employ of the company,— while he himself was neglecting to perform his own duty ? Had they been looking, they would have had a right to suppose that he would step off the track in time to avoid injury. He does not testify that he did not hear the trains. On the contrary it is quite evident that he did hear them, and knew that one at least was coming behind him. It is difficult to conceive of a case of greater contributory negligence. Plaintiff went deliberately from a place of safety into a place of danger. Kansas City, etc., R. Co. v. Cook, 13 C. C. A. 364 (66 Fed. 115, 28 L. R. A. 181); Wabash R. Co. v. Skiles, 64 Ohio St. 458 (60 N. E. 576); Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271); Michigan Cent. R. Co. v. Campau, 35 Mich. 468; Bresnahan v. Railroad Co., 49 Mich. 410 (13 N. W. 797); 3 Elliott, R. R. § 1250. The judgment is affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.