Van Auken v. Michigan Central Railroad

BROOKE, J. (after stating the facts). The evidence introduced on behalf of plaintiff conclusively shows, that the load in question was loaded by experienced men in accordance with the rules of the defendant company and a practice which had prevailed for many years. We think it also sufficiently appears that the method followed had proven reasonably’ safe and efficient. There is no testimony in the record tending to show that the conductor, or any member of the crew of the train, was either inexperienced or in [339] competent. The inspection made by the conductor was the usual one, and he testified that he believed the car to be safely loaded; otherwise he would have refused to receive it in his train. Nor is there any evidence that a proper inspection would have disclosed a defect in the wiring. The loading and wiring were done by fellow-servants of Maurer and every log in the load was placed in position by himself, operating the steam loader, under the direction of the top loader. If the car was improperly loaded or wired, it would seem that the negligence involved would be that of a fellow-servant. Powers v. Lumber Co., 92 Mich. 533 (52 N. W. 937). But be this as it may, there is, in our opinion, another and an insurmountable obstacle to plaintiff’s recovery. The statute (Act No. 300, Pub. Acts 1909) absolutely prohibits defendant from furnishing, and all persons from accepting, transportation except in compliance with the provisions of the law. Had plaintiff’s decedent complied with the lawful requirements for transportation over this logging branch, the terms of his contract would have prevented recovery. Can it be said that because he (either innocently or wilfully) violated the law, he is thereby placed in a better position than he would have occupied had he complied therewith? We think not. Maurer was not a “passenger” in the ordinary acceptation of that term, upon a passenger train. He wasr at most a bare licensee, to whom defendant owed no duty except to refrain from injuring him wantonly or wilfully. 3 Elliott on Railroads, § 1255, and cases-cited. The cases cited and relied upon by plaintiff have been examined. They are cases based on the carriage of passengers upon passenger trains, and are therefore not applicable to the case at bar, where the train was not a passenger train, and where the conductor [340] thereof was held out to the public as one having a definite and limited authority as to the terms upon which passengers should be carried. Defendant had the right to impose such restrictions touching its liability as it saw fit with reference to the carriage of passengers upon its logging trains. Arnold v. Railroad Co., 83 Ill. 273 (25 Am. Rep. 386). We have recently held that the general rules in use for the operation and maintenance of trains on the main line are impracticable and inapplicable to logging roads. Ingersoll v. Railway Co., 168 Mich. 380 (134 N. W. 441). The learned circuit judge predicated plaintiff’s right to recover upon Maurer’s belief “that he had a right to ride on this train, and that he was not violat-' ing any law in doing it.” That is to say, that the consequences of an illegal act may not be visited upon one who ignorantly violates the law. Aside from the fact that the record is barren of evidence as to what Maurer believed when he took passage upon the train, it is clear that his ignorance of the law, if it existed, cannot affect his legal rights. 1 Elliott on Evidence, §96. 1 Jones on Evidence (1st Ed.), §20. The conductor had no authority to bind defendant by inviting or permitting Maurer to ride upon a logging train in contravention of its published schedule and the statute. See Moore v. Railroad Co., 115 Mich. 103 (72 N. W. 1112). We conclude that a verdict should have been directed in favor of defendant. The judgment is reversed, and there will be no new trial. McAlvay, C. J., and Stone, Moore, and Steere, JJ., concurred with Brooke, J.