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

Brooke, J. (after stating the facts). Touching the first error relied upon, it is sufficient to say that the point is covered by our decision in the case of Fernette v. Railroad Co., 175 Mich. 653 (144 N. W. 834). Of the other five matters relied upon, we find it necessary to discuss but one, the third. Liability of a common carrier railroad company, under either the Federal or State act, to its employees in case of injury, must be based upon some negligent act of the railroad company. Seaboard Airline Ry. v. Horton, 233 U. S. 492 (34 Sup. Ct. 635). We are of opinion that the failure of the defendant to notify plaintiff of the danger in riding the tender into the roundhouse in the position assumed by him at the time of his injury was not negligence. The danger of assuming such a position upon any of the engines was an obvious one. Plaintiff claims to have ridden through one or the other of these various doors at least 150 times. The clearance between the smallest tender [551] and the door jam was but 16 inches, a space so small as to render it exceedingly hazardous for an employee to assume a position on the outside of the tender. The point selected by the plaintiff upon which to ride into the roundhouse was not the only place upon the engine he might have boarded. He might, too, have stopped the engine just outside the' door and walked in in front of it or followed it in. During the period of plaintiff’s employment engines of the type upon which he was injured were frequently in the terminal. The size of the tenders upon these engines was open to his observation, and it was his duty, knowing the width of the door in question, to have taken some care for his own safety. The roundhouse was a permanent structure. The engines to be placed therein went at a very low rate of speed, not faster than a man would ordinarily walk. The rule which protects railroad employees from the existence of structures upon the right of way too close to the track is not applicable in a case of this character. The case of Hogan v. Railroad Co., 209 N. Y. 20 (102 N. E. 555), is in principle exactly like the case at bar. There the court said: “The respondent relies on the numerous cases in which it has been held negligence to locate structures of various kinds so near the tracks of a railroad as to injure the crews of moving trains. This rule has been held as to spouts of water tanks, mail cranes, signal posts, and the like, and would apply to the case of a doorway so narrow as to endanger the safety of employees while on an engine. But it is not applicable to the present case. The crew of a train are often obliged, in the discharge of their duties, to place some parts of their bodies beyond the limits of the cars or engines. Brakemen on freight trains are obliged to go to the top of the cars, and on many cars to mount by ladders at the side of the cars instead of at the end. Engineers and firemen often are compelled to put their heads out of the cabs, looking for signals. Of course, it would be impossible for one of the crew [552] on a rapidly moving train to remember the location of the structures, or to guard against contact with them. But entry into or exit from a closed building, through a doorway, is a very different matter. Every one going through a doorway must be conscious of its presence and govern his movements in accordance with its size and location. The question really is: Ts the master required to provide a doorway so large that not only the occupants of the vehicles, but persons holding onto the outside of the vehicles may pass through with safety?’ If the rule applies to engines, it would seem to equally apply to other vehicles, and the doors of carriage houses, barns, and the like must be large enough to permit persons standing on the steps of vehicles to pass through. As already said there is no suggestion that the doorway was not sufficient for the safety of the employees in the engine. * * * There was nothing calling upon the deceased to mount the engine at this time or place. The fireman and assistant were operating the engine, had run it into the house, and were running it out. True, the deceased would have been justified in boarding the engine whenever he could do so safely; but the engine was to proceed only 75 feet from the door of the roundhouse to the water tank, where it would be stopped. The deceased had merely to walk after it. If, however, for any purpose, he wished to board the engine, there was no reason why he should not have had it stopped. * * * In the absence of proof that any duty might require an employee to board a moving engine, about to pass through a doorway, the defendant cannot be held guilty of negligence in not providing against such a contingency. It is equally clear that the plaintiff’s intestate was, under the circumstances, guilty of contributory negligence.” We must hold that under our own decisions it was the duty of the plaintiff to have familiarized himself with the situation and the obvious danger of following the course which led to his injury, and that it was not negligence of the defendant to fail to warn him. Pahlan v. Railway Co., 122 Mich. 232 (81 N. W. 103); Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110); [553] White v. Sugar Co., 149 Mich. 473 (112 N. W. 1125); Carr v. Railway Co., 152 Mich. 138 (115 N. W. 1068). The judgment is reversed, and there will be no new trial. McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.