Milbourne v. Arnold Electric Power Station Co.

Carpenter, J. Plaintiff brought this suit to recover compensation for injuries received while in defendant’s employ. He recovered a verdict in the court below. On a motion for a new trial the lower court set aside the verdict on the ground that, under the testimony, a verdict should have been directed for defendant. Upon the stipulation of the parties that “ if the evidence offered ” showed, “ as a matter of law, that the plaintiff was not entitled to a judgment, that a new trial was not desired by plaintiff,” and that, upon the other hand, “if the evidence warranted ” the jury in finding a verdict for the plaintiff, the judgment heretofore entered for the plaintiff should stand affirmed, the trial court entered judgment for the defendant, “subject, however, to the right of the plaintiff to have said judgment reviewed by the Supreme Court.” The record then presents this single question: Did plaintiff make a case which entitled him to take the judgment of the jury ? For the purpose of determining this ques — 318 — tion, it is obvious that we must consider that testimony from the point of view most favorable to the plaintiff. Defendant was a foreign corporation constructing the electric road between Lansing and St. Johns. Plaintiff was a common laborer in defendant’s employ. The day of his injury, November 29, 1901, he had been employed in the work of construction about six miles north of Lansing. His injury occurred after dark by a collision between the construction train of defendant, upon which he was being carried home, and a train of cars loaded with gravel, also belonging to defendant. The collision occurred on a spur track situated on the east side of the main track, at a place called “'Hurd’s Gravel Pit,” about three miles north of Lansing. The train upon which plaintiff was being carried consisted of a locomotive pushing 10 empty flat cars and pulling a single way car. This way car may be described as a flat car with a house built upon it. This house did not occupy the entire surface of the car. There was left an uncovered space five or six feet long at the front end. Plaintiff, when he boarded the train, instead of accompanying his fellow workmen inside the house, seated himself on this space, with his left foot braced against a bolt which projected about an inch upward from the front end of the car. The tools used by plaintiff and his fellow workmen also occupied this space. Defendant’s assistant superintendent or roadmaster, who was on the train, told plaintiff that he had “better go inside” the way car. Plaintiff replied, “Igot up here to watch the tools to see that none of them fell off, and I have a good seat.” The roadmaster said, “All right, then,” and went on the engine. According to the custom of defendant and the orders of defendant’s manager, the empty cars on this train were to be left on the spur track at the gravel pit before mentioned. When the train reached that point, it went on said spur for the purpose of leaving said empties, and, while going at quite a rapid speed, it collided with the cars loaded with gravel, also situated on said track, and plaintiff was thrown from the car and seriously injured. — 319 — It is to be inferred from the testimony that the cars standing on said spur track, 10 or 11 in number, had been loaded with gravel that day while situated on another spur a few feet south of the spur above described, but on the west side of the main track, and that late in the afternoon, by the order of defendant’s general superintendent and manager, a Mr. Quick, they had been moved to said east spur. Until the very day of plaintiff’s injury, this east spur had been a siding long enough to hold all the cars of defendant, 22 in number. That day, to the knowledge of plaintiff and those in charge of the train upon which he was riding, it had been made into a spur, and, as a result, shortened so that it would only hold 11 or 12 cars. Before it was shortened, all the cars were frequently placed on said siding. No light was placed on said loaded cars, and no notice was given by Mr. Quick to those in charge of the train upon which plaintiff was riding that the loaded cars had been placed on said spur track. It is contended by defendant that from these facts no inference of negligence can be drawn, that plaintiff was guilty of contributory negligence, and that he assumed the risk of the danger which resulted in his injury. It is settled by our decisions (see Harrison v. Railroad Co., 79 Mich. 409 [7 L. R. A. 623]; Palmer v. Railroad Co., 87 Mich. 281; La Barre v. Railway Co., 133 Mich. 192) that the general superintendent, Quick, was a vice-principal, for whose negligence defendant is responsible. We think from this evidence the jury might infer that Quick was negligent in placing these loaded cars on this spur, and in failing to give notice of that fact to those in charge of the train upon which plaintiff was riding. In stating this conclusion, we have not overlooked defendant’s contention that there was no necessity for notice to those in charge of the train, because they knew, that'these loaded cars would be on one or the other of the two spurs, and that they were frequently placed on the east spur when it was a siding sufficiently long to hold all the cars. — 320 — We do not think that the court can say that these facts dispensed with the necessity of notice. Those in charge of the train might very well believe, and it is apparent that they did believe, that because of the shortening of the track, and their orders and custom to put the empty cars there, that they would find it safe for that purpose. When plaintiff chose to remain outside the house on the way car, was he guilty of contributory negligence ? It may be conceded, that in consequence of making this choice, plaintiff was injured. This circumstance has, however, in my judgment, no material bearing on the question of his contributory negligence. In determining his choice, plaintiff was bound to take into consideration such dangers, and such dangers only, as an ordinarily prudent person might apprehend, and surely no ordinarily prudent person would have apprehended the collision. This statement of the rule is not in conflict with the proposition, in support of which cases are cited in the accompanying opinion of Justice Hooker, that one who is actually guilty of, negligence in choosing an unsafe position cannot recover because he is there injured by a danger which he did not anticipate. The proposition which it is claimed those authorities establish would prevent plaintiff claiming that, though negligent, he might recover because his injury was caused by an unanticipated danger. No such contention is involved in the reasoning of this opinion. The proposition which it is claimed those cases establish, that one who has negligently chosen a position cannot recover for an injury there resulting from an unanticipated danger, is radically different from the proposition asserted by me — a proposition which I cannot but regard as elementary — that one will not be adjudged negligent because he did not anticipate a danger which he could not anticipate. I am aware of no authority which declares a contrary principle. Can we say that no ordinarily prudent person would have taken the course plaintiff took ? To do this, we must say that the danger to which this position exposed him was such that no ordinarily — 321 — prudent person would under the circumstances have risked it. The danger that was risked, the danger which an ordinarily prudent person should have apprehended, was that of falling or being thrown off the car by its ordinary management. The risk of that danger was undoubtedly assumed by plaintiff, but he would not therefore be guilty of contributory negligence, unless no person of ordinary prudence would have assumed that risk. I do not think it can be said as a matter of law that no person of ordinary prudence would have assumed it. Such a person might reasonably suppose, as presumably plaintiff supposed, that he could protect himself from such dangers by bracing his foot against the projecting bolt. In considering the question of plaintiff’s contributory negligence, we should bear in mind the circumstance under which plaintiff acted. The fact that one takes a risk in the performance of a duty is a circumstance entitled to great weight in determining whether his conduct was negligent. See Eckert v. Railroad Co., 43 N. Y. 502; Spooner v. Railroad Co., 115 N. Y. 22. Can we infer that plaintiff remained outside the way car in the performance of a duty ? That depends upon the inference to be drawn from the conversation between plaintiff and his superior, defendant’s assistant superintendent. The assistant superintendent told plaintiff he had better go inside. Plaintiff replied, “ I got up here to watch the tools to see that none of them fell off, and I have a good seat.” The roadmaster said, “ All right, then,” and plaintiff remained in his position. In considering this conversation, we must bear in mind the elementary rule that, if susceptible of more than one construction, its meaning is to be determined by the jury, and not by the court. See McKenzie v. Sykes, 47 Mich. 294. I do not deny that from this conversation the jury might have inferred that defendant merely acquiesced in plaintiff’s determination to ride on the open car. But I cannot assent to the contention that this is the only inference they could legitimately draw. By saying, in answer to the direction to go inside, “ I got — 322 — up here to watch the tools to see that none of them fell off, and I have a good seat,” the plaintiff merely explained his purpose; he did not assert a settled determination to remain in that position. At least, the jury may have found that he did not. By replying, “ All right,” to plaintiff’s proposal to stay and watch the tools, the assistant superintendent not only acquiesced in plaintiff’s remaining where he was, but also furnished evidence of an approval of his purpose in remaining. Plaintiff proposed to stay there and watch the tools; that is, I take it, to prevent their loss or damage. From defendant’s answer, “All right,” the jury certainly could have inferred that defendant approved his purpose, and thereby ratified this self-assignment to a new duty. If, when plaintiff had said, “ I will stay here and watch the tools,” defendant’s superintendent had replied, “ I am glad you suggested watching those tools; they need to be looked after; stay here and see that they do not get lost or damaged ” — plaintiff’s assignment to a duty outside the way car would be clear. It is true that defendant’s superintendent did not use the supposed language, but the jury might have inferred from the language he did use that that is precisely what he meant, and what the plaintiff supposed and had a right to suppose that he meant. From this conversation, it might therefore be inferred. that plaintiff was directed to stay where he was and there perform a duty for defendant. The fact that plaintiff remained in this position to perform a duty clearly distinguishes the case from that of a passenger who, for no other reason than that of his personal gratification, rides on the platform of a car by the acquiescence of a trainman. In support of the claim that plaintiff was guilty of contributory negligence, we are referred to Glover v. Scotten, 82 Mich. 369; Wilson v. Railroad Co., 94 Mich. 20; Benage v. Railway Co., 102 Mich. 76; Nieboer v. Railway Co., 128 Mich. 486; Railroad Co. v. Jones, 95 U. S. 439; Hickey v. Railroad Co., 14 Allen (Mass.), 429; Posey v. Railway Co., 102 Fed. 236; St. Louis, etc., R. — 323 — Co. v. Schumacher, 152 U. S. 77; Warden v. Railroad Co., 94 Ala. 277 (14 L. R. A. 552). In Clover v. Scotten, Warden v. Railroad Co., and Railroad Co. v. Jones, supra, it was held negligence for a switchman to ride on the pilot of an engine. In Wilson v. Railroad Co., supra, it was held negligence for a brakeman to crawl over or under the bumpers of a moving car. In Benage v.- Railway Co., supra, it was held negligence for a brakeman to ride on a brake-beam while a train was moving. In Nieboer v. Railway Co., supra, it was held negligence for a passenger to ride on the deadwood of a street car, and that the conductor had no authority to per'mit him to ride there. In Hickey v. Railroad Co., and Posey v. Railway Co., supra, it was held negligence for a passenger to ride on the platform of a car in which he was being carried. In St. Louis, etc., R. Co. v. Schumacher, supra, it was held negligence for an employe to ride on the platform of a flat car with his feet hanging over the side contrary to instructions. In each of these cases the plaintiff assumed a danger greater and more obvious than in the case at bar. If these’ authorities have any application, it must be because of the principle there asserted (see Glover v. Scotten, supra): “ When a safer place is provided, and employés choose a more dangerous one, they do it at their own risk.” I think that this principle was stated with reference to the particular facts of that case. But even if it be regarded as one of universal application, it cannot, in my judgment, be applied in this case. When it was agreed between plaintiff and defendant that the former should stay outside and watch the tools, he had no right to go inside — he was directed to stay outside. There was no longer any safer place provided for him. I do not see how we can hold plaintiff to be guilty of negligence without holding that a failure to adopt the safest course of conduct is negligence. We have distinctly held that such — 324 — failure is not negligence. See Fort Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133. We think this case comes under the rule, so often declared: “ That the question of plaintiff’s contributory negligence should be submitted to the jury, * * * where candid and intelligent men might reach different conclusions upon the facts.” Becker v. Railway Co., 121 Mich. 580. See, also, Haines v. Railway Co., 129 Mich., at page 483, and the authorities there cited. Neither do we think that the court can say, as a matter of law, that plaintiff assumed the risk which occasioned his injury. We cannot say that plaintiff assumed it unless we can say that the risk was incident to his employment, or that he knew or should have known that the loaded cars were on the spur. See Bradburn v. Railroad Co., 134 Mich. 575. If his injury resulted from the negligence of his employer, the risk was not incident to plaintiff’s employment. It does not avail defendant to say that plaintiff assumed the risk of the shock resulting from cars coming together on the siding “ with customary force.” For, from the evidence, it may be inferred that the shock of .the collision was much greater than the shock ordinarily resulting from cars coming together on the siding. It certainly cannot be said that plaintiff knew that the loaded cars were on the siding. And if those in charge of the train were not bound to know that they were there — and we have held that they were not — neither was plaintiff bound to know it. We conclude, therefore, that the learned trial judge erred in entering judgment for the defendant. Plaintiff is entitled to have that judgment reversed, and a judgment entered on his verdict. It is so ordered. Moore, C. J., and Me Alva y, Blair, and Montgomery, JJ., concurred with Carpenter, J.