Gleason v. Detroit, G. H. & M. Ry. Co.

TAFT, Circuit Judge (after stating- the facts as above). The judgment must be affirmed. We do not see how a verdict for the plaintiff upon this evidence could possibly be allowed by the court, in its judicial discretion, to stand. The plaintiff had the choice of doing the w'ork which it was bis duty to do either in a safe or in a very dangerous and reckless way. This .is fully established by his own evidence. He chose the reckless and dangerous mode, and he must bear the consequences of liis choice. It is urged on Ms behalf in this court that he was in a hurry; urged thereto by the conductor. The language of the conductor dot's not indicate that he told him to be in a hurry, but only that he should be prompt. The time which he proposed to save by the course he took, instead of removing the link while the car was at a standstill before the engine backed up, was so slight as not to make anv practical difference whatever in the train's reaching its destination at Pontiac. He says that he did not perceive that the stationary car had a Gould coupler until he turned the switch; but he might have seen it, and it was his duty to see to this in order to determine at a time when he could safely remove the link whether it was pecessary to do so. He knew that the link was there, because he rode on it, and knew, also, that Gould couplers were common in Michigan, because the statute of that state requires that all ears now made in Michigan should have Gould couplers. It was his duty to anticipate, therefore, the probability that the ear to which the coupling ivas to be made would be a Gould coupler, and that it might be necessary t o '-remove the link. By not removing the link when the car was not in motion, he took Ms chance of injury from a removal of the link while the car was in motion as it passed the switch. Even then there was no necessity [652] for his going in front of the car, for he might have waited until the two cars had come near together, and then have stopped the engine by a signal, and have removed the link. He had two courses which were entirely free from danger, and one which, by the evidence qf his own witnesses, was very dangerous; and he selected the dangerous one. . Rule 24 strictly prohibited as dangerous, and in violation of duty, stepping on the front of approaching engines and cars, jumping on or off trains or engines at high speed, getting between cars while in motion to uncouple them, coupling by hand when it was practicable to use a stick or pin for guiding the link, and all similar imprudences. It was certainly within the inhibition of this rule for the plaintiff to step in front of a moving car to remove a link, when it was possible and proper for him to remove the link before the car began to move. It was manifestly an imprudence similar to those exactly described in the rule, and plaintiff’s own evidence shows that it was so understood by the defendant’s employés. It is attempted, however, to justify plaintiff’s course by proof that it was customary for switchmen to do what the plaintiff did. The evidence thus introduced did not show that the custom was known to the officers of the company; but it did show that the custom when practiced in a situation like that in which the plaintiff was, even by those who testified to it, was regarded as dangerous and reckless, as contrary to the rules of the company, and as only to be followed at the risk of the employé. The supreme cqurt of Michigan has reached similar conclusions on all the points here considered in a case very like this one in all its facts. Loranger v. Railway Co. (filed Feb. 12, 1895) 62 N. W. 137. It is.contended on behalf of the plaintiff that, even if the course which the plaintiff took was negligence, it was not the proximate cause of the accident, because he did not know of the presence qf the grade stake. The obstruction offered by the grade stake was ot different from that which was offered by the cross-ties and the cross-rails. It was exactly of the same character, and it was of the class- of dangers which the plaintiff had every reason to anticipate in going in between the rails and in front of the moving car under the circumstances. It seems to us clear, as a matter of law, therefore, that his negligence was the proximate cause of his injury. The present case is a different case from that considered at the present term in Railway Co. v. Craig, 73 Fed. 642. There the accident happened by reason of an unblocked frog, the presence of which the plaintiff had no reason to suspect. It was held that the question of proximate cause in that case was a question for the. jury, because the jury might there reasonably have found that the trap-like character of the unblocked frog was such a new independent and unexpected cause of the accident as to break the chain of legal causation between the plaintiff’s negligence in stepping in between the moving cars and the injury which did occur from the unblocked condition qf the frog. We reach our conclusion in this case on the assumption that the presence of the stake in the middle of the track for a year tended to show negligence on the part of the company, [653] causing the accident. The evidence was insufficient in'law to sustain a verdict for the plaintiff, and required the court below to direct a verdict for the defendant. Judgment affirmed.