Lukovski v. Michigan Central Railroad

Brooke, J. {after stating the facts). The negligence of the defendant relied upon by the plaintiff is: “ In that it omitted to furnish, provide, and maintain for use in elevating such coal to the tenders of said engines buckets having springs thereon reasonably fit and safe for use.” [367] Plaintiff testified that, when buckets were out of repair, .he would tell the agent or operator at Vanderbilt to write a letter to Phil Coll at Bay City. Coll was foreman of the coal heavers; that from time to time Coll would send men to repair the defective buckets. Plaintiff further testified that he ordered such a letter to be sent on March 18th prior to the date of his injury on March 30th, but that Coll had sent no one to repair the buckets in the interval. In our view of this question, it is immaterial whether plaintiff properly proved the notice to repair or not, or whether, by reason of custom, he had a right to rely upon an implied promise to repair. The reason for this conclusion is that it is apparent from the record that neither plaintiff nor any member of the gang knew that the particular bucket which caused the injury was out of repair. It was in use up to the moment of the accident, and all witnesses agree that, when found out of repair, the buckets were set aside to await the arrival of the man who would fix them. The notice to repair, therefore, even if sent and received, had absolutely no reference to this bucket. Did plaintiff assume the risk ? It is clear from the record that a bucket in perfect repair would occasionally dump prematurely, particularly when hoisted too rapidly, or when it was permitted to strike the side of the tender. This situation seems to have been known and appreciated by all those familiar with the operation of the buckets. The plaintiff himself was chargeable with the knowledge, and was bound to govern himself accordingly. The appliance was of the simplest and most elementary character, easily understood, and constantly under the supervision and control of the plaintiff who could, at any moment, set aside any bucket found out of repair. Under these circumstances, it was the duty of the plaintiff to make such examination as he deemed necessary to assure his own safety. In using the buckets he assumed the risk. Fischer v. Goldie, 132 Mich. 574 (94 N. W. 5); [368] Juchatz v. Alkali Co., 120 Mich. 654 (79 N. W. 907); Dolan v. Atwater, 167 Mass. 274 (45 N. E. 742); Lamotte v. Boyce, 105 Mich. 545 (63 N. W. 517); Younggren v. I. Stephenson Co., 150 Mich. 488 (114 N. W. 341); Wheeler v. Berry, 95 Mich. 250 (54 N. W. 876); Bauer v. Foundry Co., 132 Mich. 537 (94 N. W. 9); Lynch v. Traction Co., 153 Mich. 174 (116 N. W. 983, 21 L. R. A. [N. S.] 774); Bays v. Featherbone Co., 131 Mich. 205 (91 N. W. 1641: Clark v. Goldie, 146 Mich. 303 (109 N. W. 1044). Another reason exists, however, why plaintiff cannot recover. The record discloses that the defendant had provided a rope to be attached to the chain above the bail, by means of which plaintiff might, if he had chosen, have held the bucket steady as it was elevated, instead of using his hands for that purpose. His fellow employés used the rope part of the time before his injury. Since that time all of them use it all the time. Where two methods are open for the performance of a duty, one dangerous and the other safe for the operator, one who chooses the dangerous method rather than the safe will be precluded from recovery. Davey v. Hall & Munson Co., 122 Mich. 206 (80 N. W. 1082); Deering v. Canfield & Wheeler Co., 126 Mich. 373 (85 N. W. 874); Mulholland v. Manufacturing Co., 149 Mich. 126 (112 N. W. 483); Conner v. Railway Co., 158 Mich. 688 (123 N. W. 533). The judgment is reversed, and a new trial ordered. Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.