Britton v. Wabash Railway Co. , 230 Mich. 628 ( 1925 )

I am not in accord with the opinion prepared by Mr. Justice SHARPE. Defendant's motion for a directed verdict should have been granted. Recovery was had under the Federal employers' liability act. This presents a Federal question. In actions under the Federal employers' liability act the doctrine of assumption of risk remains as at common law, except as to fellow-servants and in case of violation of a Federal statute enacted for the safety of employees.Southern Railway Co. v. Crockett, 234 U.S. 725 (34 Sup. Ct. 897); Boldt v. Railroad Co., 245 U.S. 441 (38 Sup. Ct. 139);Chapman v. Railroad Co., 196 Mich. 671; Sims v.Railway Co., 196 Mich. 114.

Upon the question of when the employee assumes the risk under the Federal act, decisions of the Federal courts control.Southern Railway Co. v. Gray, 241 U.S. 333 (36 Sup. Ct. 558).

The risk plaintiff encountered was obvious and recognized by him. His inexperience does not excuse him in ignoring a danger apparent to him. He was 18 years of age, presumed as capable as an adult to assume risks of employment, and in fact was well aware of the possible danger attending the act in which he was injured. He assumed the risk. Martin v. Detroit Lumber Co.,141 Mich. 363. The plaintiff not only assumed the risk but his evidence establishes beyond peradventure that he was aware of his sleepy and dull mental condition and of his physical weariness. Defendant, if aware of plaintiff's condition, could have given him no warning thereof that he did not himself possess.

For the purposes of this opinion, it may be conceded that plaintiff at the time he was injured was engaged in interstate commerce, and was injured because of want of alertness arising from long hours of labor without adequate rest.

Plaintiff's own testimony brings this case within the holding in Schweig v. Railway Co., 132 C.C.A. 660 (216 Fed. 750, 7 N.C.C.A. 135). In that case plaintiff's decedent was 16 years of age and employed by the railway company in working about its yards. He was accustomed to ride on engines in going from place to place where his services were required. While so on an engine and in the act of stepping over the coupling apparatus, he fell off and was run over and killed. The action was under the Federal employers' liability act.

The court stated:

"There was testimony on the part of the plaintiff that Schweig was ordered to go down to the storage yards, but in the view we take of the case this becomes immaterial, as we think under the evidence that Schweig was not a trespasser in riding upon the engine. In approximately 57 hours next preceding the time of the accident, deceased had been on duty and working for the company 54 hours and 40 minutes. There was evidence that deceased had fallen asleep the previous night at 10:30, while standing up eating a sandwich. The only negligence alleged against the company was the act of permitting Schweig to so continuously work without rest.

"Plaintiff in error claims that Schweig fell from the engine by reason of being in a tired and exhausted condition, although there is no direct evidence that this was so, and it is very doubtful whether there was sufficient evidence to go to the jury upon this subject (St. Louis, etc., R. Co. v. McWhirter,229 U.S. 265 (33 Sup. Ct. 858); but we do not determine this question. Looking at the case as presented by the record, regardless of the hours of service act, and treating the case simply as one under the employers' liability law (35 U.S. Stat. p. 65) it is clear that Schweig assumed the risk of injury by reason of the continuous hours of service, as he knew better than anybody else his own condition, and as to whether he was taking any risks in continuing to work in his then present condition, whatever it was. Therefore the verdict was rightly directed on this view of the case."

See, also, Furlow v. United Oil Mills, 104 Ark. 489 (149 S.W. 69, 45 L.R.A. [N. S.] 372).

Plaintiff was anxious to earn the wages paid for long hours of employment and knowingly taxed his mental and physical powers of endurance beyond what he should. But this, if it was known to defendant or should have been discovered, was equally known to plaintiff, and bars him from pleading such condition in release of assumption of risk.

In order to fully understand this case it is necessary to state at considerable length the testimony given by plaintiff.

Plaintiff testified:

"These long, continuous hours of service without rest or sleep made me dull and sleepy, and I was tired, and have gone to sleep while I was working. * * * I knew that I was sleepy and that I was putting in long hours. I knew that loss of sleep was causing my condition. I was aware of my condition, that I was sleepy and dull and tired. I knew of these things all the time that I was working there, and knew it when I went out there to go across those cars, I was some sleepy. I did not realize or appreciate my condition fully at that time. * * * I knew that there was a danger to climb over or crawl under a train of cars. I didn't think much about it at the time. After the train started I could have jumped off and if I had, I don't suppose this particular accident would have happened. I thought it was safer to stay on to the train than it was to risk jumping off.

"Q. * * * You just simply took the chance there. Instead of getting off when that train started, you just simply took the chance of riding down a little farther so it would bring you nearer that restaurant, and then when the train stopped suddenly it jerked you off and you got hurt. Now, that was the situation, wasn't it? Is that right?

"A. I stayed on the train. Yes, sir.

"Q. And that is the reason that this accident happened, is because you took that chance, wasn't it?

"A. Yes, sir. * * * If I went across to the restaurant to get my meals I had to pay for them, and if I got my meals at the Wabash where they were furnished, they didn't cost me anything. I knew that the Wabash wasn't going to pay for meals that I got over at the restaurant. I bought my meals on my own hook, but I was paid for the time it took me to go across and get my meals and come back. * * *

"All the time I was there from July 8th up to August 3d, I was crossing these tracks quite frequently and there were always freight trains on those tracks. Those trains were being moved on the main track and on sidetracks and I knew that the cars were moved back and forth although they had never been moved when I was going across. This night in question when I went out there I didn't notice the engine. I looked both ways, I am sure I looked both ways to see. The reason I looked both ways to see whether there was an engine attached to the string of cars or not was that I didn't want to go onto it and have it start up with me. I was that careful at that time. My brain was perfectly clear enough that I looked to see that the cars wasn't moving and looked to see if there was an engine hooked on to them. I knew that it was dangerous to get onto cars if they was moving, or to get onto cars if they was going to move. I say I looked to see if an engine was attached to this particular string of cars, but I didn't notice the engine. I think the bell was ringing. I think they ring the bell when they are going to move, but I have seen them out there dumping cinders when the bell was ringing nearly all the time. This locomotive was not on the cinder bed, the locomotive was to the east, and I heard the bell ring. I suppose if I had walked up there and took a look I would have known that that engine was attached to that string of cars. I didn't walk up there to look. I made up my mind that I would crawl over those cars and go over to the restaurant, I had never had interference going across there, and I didn't think of the cars moving. I knew it would be dangerous if the train started when I was on it. * * * On the day I was hurt I had taken my dinner and supper at the commissary. I had part of my meals there all the time and a part across the track to the restaurant. * * * The yards extend east and west from the shops and there were twelve or fourteen tracks, main and sidetracks, between the shops and the restaurant. * * * It wasn't absolutely necessary for the employees to leave the shops for any purpose whatever unless they saw fit to go over here to this restaurant to get a meal. * * * I was never told that if I didn't do extra work that I would be discharged, or anything of that kind. I thought it was an accommodation to them and it also earned me more money. I didn't think that the amount of work that I was doing was injuring me. I think I am a good, intelligent young man, and have a country school education. I can say that I did not realize the condition I was in and appreciate it. I knew I was sleepy and I knew I was tired, but that is as far as my thoughts went about it. * * *

"Q. And so far as you know, no Wabash man or employee knew that you and the other boy were on that train when it started? Is that correct?

"A. Yes, sir. After I was injured I was taken in the roundhouse and Mr. Moran and Mr. Meyers were there. I think they inquired of me as to how I got hurt and I said I didn't feel like talking. The boy with me was Clair Beyers. I think I told Clair Beyers not to tell the Wabash men how I got hurt. The reason I didn't tell the foreman how it happened was that I didn't feel like talking. I didn't want Beyers to tell it. He didn't know how it happened and I didn't know what he would tell. I told him not to say anything about it. * * * At the time I crossed that yard that night and on every other occasion I used the best care I could think of. I never received any warning of any kind by any of the supervisors there of the Wabash as to the danger of crossing the tracks or going between cars or anything like that. * * * The night in question I got through my job I was working on before 12 o'clock. I got through at 11:15 or somewhere there so I had three-quarters of an hour between when I had finished my job and supper time at the commissary, and instead of waiting for the commissary lunch the other boy and I started to go across to the restaurant."

I find nothing in this case relieving plaintiff from the risk he says was known to him at the very time of the accident. He was fully aware of the danger lie would encounter if the train started; he heard the bell ring its warning, yet he proceeded to pass over the cars, and the train started, and the very danger he apprehended was upon him. Plaintiff was old enough to and did fully appreciate the danger incident to passing over the standing train. Was he so sleepy and exhausted by long hours of labor as to be rendered indifferent to ordinary care for his safety? His testimony refutes any such idea. But he says he was not given instruction about care to be exercised. What need had he for instruction about care to be taken? He was fully aware of the care he should have exercised to avoid the known danger.

Plaintiff's claim that he did not appreciate his mental and physical condition at the very time of the accident does not help him, or place the risk he assumed upon defendant. He was aware of his condition and should have employed such knowledge in his own behalf. He cannot be heard to say that defendant should have discovered what he knew about himself, and have acted as his mentor, and saved him from a danger he recognized, and, after recognition, encountered voluntarily.

I have examined the cases cited by my Brother, but space forbids review thereof. Of the cases so cited, those nearest the mark placed liability on the ground that the employer exacted services of an employee when the latter was incapacitated from performance of duties by reason of loss of sleep and physical exhaustion. The testimony of plaintiff forbids application of any such principle to this case, or to reason by analogy from such holdings that there was actionable negligence in this instance. If plaintiff's testimony is held to show actionable negligence the holding will be far-reaching in effect, will not fall within any principle of negligence known to date to the law, common or statute, abrogate the rule of assumption of risk, and admit of a designing plaintiff capitalizing his own inattention to ordinary risks.

So far I have considered the case on the theory that plaintiff at the time of the accident was engaged in interstate commerce and, therefore, the Federal employers' liability act applies. I am of the opinion, however, that when plaintiff was through with his work that night, even if his work was in interstate commerce (of which there is no sufficient evidence), when he started to get his lunch elsewhere than where provided by the terms of his employment he was not engaged in interstate commerce, but was about his private affair wholly divorced from any relation to his employment.

I am also satisfied there was no negligence of which plaintiff can complain in the sudden stopping of the cars. His presence was not known to any one operating the train. This claim I understand is abandoned, and I only mention it because of the provision in the Federal employers' liability act, saving one from assumption of risk, when injured through the negligence of fellow-servants.

The judgment should be reversed with direction to the circuit court to enter judgment for defendant. Defendant should have costs.

CLARK and STEERE, JJ., concurred with WIEST, J.