Wudlick v. Chicago & Northwestern Railway Co.

Brooke, J. (after stating the facts). Plaintiff himself testified: “We left our tools between the shovel and the railroad cars 35 feet away from the shovel to the north.” Frank Malko, one of the three men who accompanied him at the time he was hurt, testified: “We left our tools at the place we was working, about 300 feet or maybe more from the steam shovel.” Plaintiff as well as other witnesses sworn in his behalf testified that there were other ways in which they could reach the point where their tools lay in [694] perfect safety. Whether the tools were lying at a point 35 feet from the shovel or 300 feet therefrom would seem to be unimportant as in either event they were in a safe place.. It cannot be claimed on behalf of plaintiff that he was ordered to reach his tools along the way he took nor can it be said that any custom existed which made it necessary or proper for him to follow that extremely hazardous course. He was accustomed to working in the immediate vicinity of steam shovels and must be held to have had knowledge of the danger attendant upon his act. This is not asserted as bearing upon plaintiff’s assumption of the risk of injury from his act, but in its relation to the question of defendant’s negligence. It is clear that plaintiff cannot recover against defendant either under the Federal or State law unless some negligence on the part of the defendant is shown. Lydman v. DeHass, 185 Mich. 139, and Miller v. Railroad Co., 185 Mich. 432. We have no hesitation in holding that the verdict in this case was properly directed.' Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ.,' concurred. Ostrander, C. J., did not sit.