Brown v. Ann Arbor R. Co.

• Decision Date: 27 September 1898
• Citation: 118 Mich. 205,76 N.W. 407
• Court: Michigan Supreme Court
• Parties: BROWN v. ANN ARBOR R. CO.

76 N.W. 407

118 Mich. 205

BROWN v. ANN ARBOR R. CO.

Supreme Court of Michigan

September 27, 1898

Error to circuit court, Benzie county; Fred H. Aldrich, Judge.

Action by Jacob Brown against the Ann Arbor Railroad Company. There was a judgment for defendant, and plaintiff brings error. Reversed.

On directing a verdict for defendant, the court charged "Owing to the necessity of the preservation of boats and machinery while the boat is not in commission, but is 'laid up,' as it is termed, it is necessary to leave the hatchways open; and that of itself is not negligence on the part of the owners of the boat, and has so been held by our supreme court. So the leaving of the hatchways open is not negligence; and, for the plaintiff to recover, it would seem to me to be necessary for plaintiff to show that the person directing him to go, if he were directed to go through this boat, where these open hatchways existed,-that the person who directed him to go there,-had a superior knowledge to himself as to the condition of the boat, which has not been done in this case. It would also seem to me that, in order for the plaintiff to recover in the case, it would be necessary to show that the defendant or its agents gave him some specified directions (that is to say, told him just where he should go, or gave him directions), and he necessarily followed those directions, in order for the accident to occur. Now, the directions that were given were general,-simply told him to go above and get down into the engine room, and those directions were not specific. He was not told to go in any particular manner, and the proofs in the case show that there was at least one safe method open to him; and I do not see where the jury can infer that the person who directed him had it in mind that he would take an unsafe way, when there was a safe way which was much nearer and more convenient than the way which he would have to go around the hatchways; and, even if there were no other ways than to go around those hatchways there, there was plenty of room on the outside of the hatchways, which it seems to any cautious person who was at all accustomed to boats is the course that they would have taken. It is claimed on the part of the plaintiff that he did not know of the custom of leaving hatchways open; that he had worked upon a boat that had iron gratings over the hatchways. But he was a boatman and it seems to me that the person directing him would have a right to believe that, inasmuch as his regular employment was on a boat, that he knew something of boats of this nature and would know of the custom of leaving hatchways open; or even if he didn't, and supposed these hatchways were covered with gratings, it would seem to me to be carelessness for a person to go through the center of the boat, when there was plenty of room to go around the hatchways; and an ordinary, careful, prudent person, knowing of the existence of hatchways, and not knowing whether they were open or closed,-not knowing their conditions,-would naturally go around them, as, in the construction of boats of this kind they are constructed with hatchways in the center. And it would also seem to me that an ordinary, prudent, and careful man, when there was a number of men there present, would have requested, or should have, assistance in opening up the hatchways sufficiently to get a light, where he was intending to go through a boat that he knew nothing about. It would seem that ordinary prudence would require a person, in going through any space that was perfectly dark, that he was unaccustomed to, to get some light, where there was a means of getting a light. Another thing that would occur to me that it would be necessary for the plaintiff to show would be that the person sending him knew that he was ignorant of the condition that surrounded him. Now, the person sending him knew that he was employed upon a boat, and had been for a number of months; and there is no testimony to show how extensive a knowledge this man Cosgrove had of the ignorance or knowledge of the plaintiff of this same business; but he had had him under him for a number of months, and knew of his employment, which was somewhat similar in its nature,-at any rate it was upon a steam barge; and it seems to me that, in order to charge the defendant with the knowledge of this plaintiff's ignorance, the plaintiff himself should have stated that he didn't know anything about this boat, or didn't know anything about boats in general, or didn't know where the engine room was, or he didn't know the way to the engine room; but he did not state any of those matters, and the testimony shows that there was a method of getting there by going up above and down but a short distance from there,-there was a method of getting to that engine room; and it seems to me as though, if the jury should draw any inference one way or the other, the natural inference would be that Cosgrove intended he should take that method. Now, taking all these facts into consideration, and others which I will not take the time to mention, it would seem to me that the plaintiff himself was guilty of carelessness. Without going into the question fully as to whether the defendant was guilty of carelessness or not, and our law is such that if a man is guilty of contributory negligence when he receives an injury, even though the party against whom he brings his action is negligent, then he cannot recover. The courts do not...