Carr v. St. Clair Tunnel Co.

Grant, J. (after stating the facts). Making flying switches is a method in common use by the railroad companies of this country. It was not, therefore, negligence on the part of the defendant to do this work in the usual and customary way. 3 Elliott, R. R. § 1274; Schaible v. Railway Co., 97 Mich. 318 (56 N. W. 565, 21 L. R. A. 660); Pahlan v. Railway Co., 122 Mich. 232 (81 N. W. 103). Other courts have recognized this practice as existing in most pf the railroad yards in the country, and have therefore held that it does not constitute negligence as to employes. Hunt v. Hurd, 39 C. C. A. 226, 98 Fed. 683. Plaintiff had assisted in making these flying switches for eight days previous to the accident, and made no objection. He therefore assumed the risk. Youll v. Railway Co., 66 Iowa, 346 (23 N. W. 736); Jolly v. Railroad Co., 93 Mich. 370 (53 N. W. 526); Kelley v. Railway Co., 53 Wis. 74 (9 N. W. 816); Fordyce v. Lowman, 57 Ark. 160 (20 S. W. 1090); Bengtson v. Railway Co., 47 Minn. 486 (50 N. W. 531); Coombs v. Railroad Co., 156 Mass. 200 (30 N. E. 1140). Judgment affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred.