Barschow v. Lake Shore & Michigan Southern Railway Co. , 147 Mich. 226 ( 1907 )

Carpenter, J.

Plaintiff recovered a verdict and judgment in the circuit court. Defendant asks us to reverse that judgment for various reasons, which we will consider in detail.

First. Defendant contends that the trial court should have directed a verdict in its favor. The consideration of this contention requires a brief statement of the case, which statement we make, as we should, most favorably to plaintiff.

At the time of his injury plaintiff was employed by the defendant in its roundhouse in the city of Adrian. It was his duty to assist in cleaning and coaling engines brought to said roundhouse by the engineers who had charge of the same upon the road. These engines were coaled at a coaling dock a short distance from the roundhouse. About 8 o’clock on the evening of April 18, 1903, as one of these engines, viz., engine No. 119, was passing from the stationary track to the track on said turntable, its pilot, upon which plaintiff was standing, struck the projecting rail on the turntable with such force as to throw plaintiff to the ground and injure him. The collision was due to the circumstance that both the turntable and the pilot were out of repair. The turntable was “lop-sided;” that is, one of its rails projected an inch or two higher than the rail of the stationary track at their junction. The defect in the pilot (caused by wearing of the boxes) was this: It was only an inch and a half above the track, while pilots on ordinary engines, are four inches above the track.

Defendant contends that plaintiff assumed the risk of all danger resulting from the defective turntable, because he was fully informed of its condition. For the purpose-of this opinion we assume this contention to be sound. It does not follow, however, that defendant was entitled to a verdict, for plaintiff would not have been injured — -at least the jury may have so found — except for the defective condition of the engine. It may therefore be said that, notwithstanding his assumption of the risk of the defective turntable, plaintiff may still recover if he has a cause of action on account of defendant’s negligence in furnishing an engine with a defective pilot. Has he such a cause of action? It is quite certain that there was evidence that defendant was negligent in furnishing the engine with a defective pilot, for the-engine at the time of plaintiff’s injury was on its way from Monroe to Elkhart “for repairs.” From this circumstance the jury might have inferred that defendant knew or should have known of its defective condition.

It is contended that plaintiff was guilty of contributory negligence, because he was riding upon the pilot. There is testimony that he rode there in accordance with a custom and by the direction of his superior officers. Under these circumstances we think the question of contributory negligence was one for the jury.

Neither can it be said that plaintiff assumed the risk of the defective pilot. The defect was unknown to him, and it would be going too far to say that he was bound to discover it; for he had never seen the engine before. In t.bia connection we notice the contention of defendant that plaintiff could not recover, because in his contract of employment he had agreed—

“I will * * * before exposing myself * * * in working with or being in any manner on or with its cars, engines, machinery or tools, carefully examine the condition of all * * * machinery, tools, * * * cars, engines or whatever I may undertake to work upon or with, before I make use of or expose myself on or with the same, so as to ascertain their condition and soundness.”

This agreement merely obligated plaintiff to use care. It did not require him to discover the defective condition of the pilot. I conclude, therefore, that the trial court did not err in refusing to direct a verdict for defendant.

Second. Many complaints are made of rulings upon the introduction of testimony. Most of these complaints relate to rulings which were entirely correct. For instance, the court refused to permit one of defendant’s witnesses to testify that it was against the rules of the company for persons to expose themselves to such dangers as riding on the pilot. This decision proceeded upon the assumption that the rules were in writing. We think the trial court had a right to act upon that assumption, and, had it been unfounded, it is to be presumed that defendant’s counsel would have so stated. The ruling was correct. Some of these complaints relate to rulings admitting testimony which might properly have been excluded; but it cannot be said that any of this testimony had a tendency to divert the attention of the jury from the real issue, or to lead them to an erroneous decision of that issue. In other words, the objectionable rulings were not prejudicial.

Third. Defendant asked the trial court to give certain requests, in which were set forth in detail the rules of the company, portions of which had no relation whatever to plaintiff’s injury. Instead of giving these requests, the trial court covered the subject in a few general and appropriate words. We think this was proper. Defendant’s other requests were, so far as appropriate, covered by the general charge of the court.

Fourth. Charge of the court. Defendant’s complaints of the charge of the court, in so far as they have not already been disposed of by this opinion, are largely based upon the contention that they were not warranted by the testimony. It is a sufficient answer to say that we think they were so warranted.

Fifth. Refusal of the court to grant a new trial. It is contended that the trial court erred in refusing to grant a new trial upon the ground that the verdict was contrary to the law and the weight of the evidence. We think this contention is not well founded.

The judgment is affirmed.

McAlvay, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.