Chapman v. Ann Arbor Railroad

Kuhn, C. J. (after stating the facts). The principal question raised by appellant’s assignments of error relates to the alleged error of the trial court in overruling defendant’s motion for a directed verdict in its favor. It is based upon the contention that, as the common-law defense of assumption of risk is retained under the Federal employers’ liability act, except where a statute enacted for the safety of employees is violated, under the evidence in this case it should be held that the plaintiff assumed the risk as a matter of law. In this connection, it was claimed that the timber which caused the injury was taken from a high position in the car; that the plaintiff stood in a position where he could, if he had merely turned his head, have looked into the car and seen what was going on there; that it was one of the obvious risks that the plaintiff assumed that the timber might pass beyond the control of the men; that an ordinarily prudent person would have looked in the direction of the car; and that the danger would have been obvious to him. The trial judge submitted, the question of whether the risk was a usual or ordinary one to the jury with the following instructions: “Now, the defendant claims that the plaintiff assumed all of these risks when he entered the employment of the defendant. Now, the law upon that is, by virtue of the contract of service between the plaintiff and defendant, the plaintiff assumed the usual and ordinary risk incident to the employment. He assumed the usual and ordinary risk incident to the employment; that is, such risks as were usual and ordinary. Those he assumed. Such risks that he knew of, or by [675] the use of ordinary precaution ought to have known. I will read that again. The plaintiff, by' virtue of the contract of service between the plaintiff and defendant, the plaintiff assumed the usual and ordinary risk incident to the employment. “So, in this case, if what happened there that day about the timbers coming out was usual and an ordinary incident, plaintiff assumed them; or if it is such an incident that plaintiff knew would happen, or by the use of ordinary precaution ought to have known, then he would have assumed them, and he could not recover in this case.” It was the contention of the plaintiff, and there was evidence to support it, that after a period of rest it was usual to warn the party on the outside before a timber was put out, and it is claimed that if the men in the car had given that warning the accident would not have occurred. We are of the opinion that whether the plaintiff should have known of the danger, and whether the danger was so obvious that as a person of ordinary care and diligence he would have apprehended it, and, failing to do so, that he assumed the risk, was a question of fact for the jury and was. properly submitted to them by the trial court. Walker v. Railway Co., 104 Mich. 606 (62 N. W. 1032); Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592); Thomas v. Railroad Co., 114 Mich. 59 (72 N. W. 40) Shadford v. Railway Co., 121 Mich. 224 (80 N. W. 30); Nichols v. Railroad Co., 145 Mich. 648 (108 N. W. 1016); McClure v. Railroad Co., 146 Mich. 457 (109 N. W. 847); Huber v. Electric Co., 168 Mich. 531 (134 N. W. 980); Gila Valley, etc., R. Co. v. Hall, 232 U. S. 94 (34 Sup. Ct. 229); Texas & Pac. R. Co. v. Harvey, 228 U. S. 319 (33 Sup. Ct. 518); Seaboard Air Line-Railway v. Horton, 233 U. S. 492 (34 Sup. Ct. 635). Defendant’s counsel also urge that the trial court erred in overruling defendant’s motion for a new trial on the ground that the amount of the verdict was excessive. Considering the pain and suffering which the. [676] record shows the plaintiff endured, his loss of time, his disfigurement and humiliation because thereof, we are not prepared to say that the verdict was so excessive as to warrant our interfering with the judgment of the jury. Other assignments of error relate to errors in the introduction of evidence and to the claim that the verdict was against the weight of the evidence. There was a sharp conflict of evidence as to there being a custom to warn, but we are not satisfied that the verdict is against the weight of the evidence under the rule announced in Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), and since repeatedly cited with approval. It not having been made to affirmatively appear, after an examination of the entire cause, that the verdict and judgment resulted in a miscarriage of justice, it is unnecessary to discuss the assignments of error with reference to the introduction of evidence. The judgment is affirmed. Stone, Bird, Steere, Brooke, and Fellows. JJ., concurred with Kuhn, C. J.