Miller v. Detroit, Grand Haven & Milwaukee Railway Co.

Grant, J. (after stating the facts). Did the deceased assume the risk of the open drain ? A drain or depression under switches is .absolutely necessary. This is recognized in Jarvis v. Railroad Co., 128 Mich. 61 (87 N. W. 136), and also Franklin v. Railroad Co., 37 Minn. 409 (34 N. W. 898, 5 Am. St. Rep. 856). Its depth must depend upon circumstances. No complaint is made that the drain in this instance was deeper or wider than necessity required. Even on -a main line, where the employé has full knowledge of. the unsafe condition of the [568] roadbed, it is bold that he should refuse to work until the roadbed is made safe, and that, failing to do so, he is responsible for the consequences. Little Rock, etc., R. Co. v. Leverett, 48 Ark. 333 (3 S. W. 50, 3 Am. St. Rep. 230). A railroad company is not required to keep its side tracks absolutely even and smooth between the ties. They may be used without ballast, and the company will not be liable to an employé who falls in consequence thereof, if he was familiar with the condition, and made no objection. Batterson v. Railway Co., 53 Mich. 125 (18 N. W. 584); Ragon v. Railway Co., 97 Mich. 265 (56 N. W. 612, 37 Am. St. Rep. 336). In Batterson v. Railway Co. it is said: "It is matter of everyday experience that similar openings for ditches or other depressions are very common, End that it would not always be proper to close them.” This ditch or drain was known to exist by those living near by, who had nothing to do with the railroad. A hotel keeper living in the vicinity testified that the ditch had been there for years. The deceased passed over it every day. The crew to which he belonged stopped at this siding for dinner every day, and put in or took out cars four or five times a day. He had been in the employ of the company, at this place, for about a year. He must, therefore, have had knowledge of it, and voluntarily worked there without objection. If he considered it unsafe, he should have called the attention of his employer to its unsafe condition, and asked to have it covered. If it was unsafe, none knew it better than he and his fellow-servants, and no one ever made complaint during the many years it had existed, and there is no claim that any other accident ever occurred there. It must be held, therefore, that the condition of this side track was one of the risks assumed by deceased. The case of De Forest v. Jewett, 88 N. Y. 264, is a case directly in point, and was cited with approval in Ragon v. Railway Co., supra. In that case there were [569] small, open ditches running across the track between the ties, which were in existence when the plaintiff entered the employment, and were well known to him. It was held that he assumed the risk. Counsel for plaintiff rely upon Plank v. Railroad Co., 60 N. Y. 607. That case is commented upon in De Forest v. Jewett, supra, and held not applicable to facta like those here existing. See, also, Illinois Central R. Co. v. Neer, 26 Ill. App. 356; Wescott v. Railroad Co., 153 Mass. 460 (27 N. E. 10); Michigan Cent. R. Co. v. Smithson, 45 Mich. 212 (7 N. W. 791); Swoboda v. Ward, 40 Mich. 420; Phelps v. Railway Co., 122 Mich. 171 (81 N. W. 101, 84 N. W. 66). Judgment affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred. Carpenter, J., did not sit.