Sumner v. Ann Arbor R. Co.

• Decision Date: 07 June 1926
• Docket Number: No. 62.,62.
• Citation: 209 N.W. 184,235 Mich. 293
• Parties: SUMNER v. ANN ARBOR R. CO.
• Court: Michigan Supreme Court

235 Mich. 293

209 N.W. 184

SUMNER

v.ANN ARBOR R. CO.

No. 62.

Supreme Court of Michigan.

June 7, 1926.

Error to Circuit Court, Isabella County; Ray Hart, Judge.

Action by John Sumner against the Ann Arbor Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed, and new trial granted.

Argued before the Entire Bench. Dodds & Dodds, of Mt. Pleasant, Kelly Searl, of St. Johns, and H. A. Sanford, of Mt. Pleasant, for appellant.

F. J. Shields, of Howell, and F. H. Dusenbury, of Mt. Pleasant (Alexander L. Smith, and Gustavus Ohlinger, both of Toledo, Ohio, of counsel), for appellee.

WIEST, J.

This is an action under the federal Employers' Liability Act of April 22, 1908 (chapter 149, 35 U. S. Stat. 65 [U. S. Comp. St. §§ 8657-8665]). It is conceded the action is properly planted. Plaintiff, a section laborer in defendant's employ, while engaged with others in unloading wood cross-ties from a gondola car, was severely injured. Trial was had in the circuit with verdict and judgment for defendant. Upon denial of motion for a new trial, plaintiff sued out a writ of error. The errors alleged relate to instructions given the jury, refusal to give requested instruction and denial of a new trial.

The height of the gondola car to the top of its sides was 8 feet 6 inches, and the height of the sides from the floor was 4 feet 2 inches. In unloading, two ties were stood up against the side of the car to act as skids down which to slide the ties when lifted over the side of the car. Two men in the car hoisted the ties over the side, and plaintiff and another man were on the ground engaged in removing the ties from the foot of the skids. A buffer tie was placed at the foot of the skids. A tie came down the skids somewhat crooked, and plaintiff stepped over the buffer tie to get it in position for removal. While so engaged, another tie was heaved over the side of the car, without warning, and came down the skids and broke plaintiff's ankle. The negligence counted on was that of the men in the car so casting the tie out without warning. Plaintiff claims a warning had been given heralding the advent of each previous tie. This was controverted by testimony to the effect that warning was not given until but a few ties remained in the car, and then the number left to be removed was called out every alternate tie. At the time of the injury but two ties remained in the car, and the men in the car could not see the position of the men on the ground. The defense was assumption of risk.

Assumption of risk, ordinary and extraordinary, when obvious and incident to employment, remains a defense under the federal act. The federal act abrogated the fellow-servant rule, and remits contributory negligence to mitigation of damages. See Chesapeake & Ohio Ry. Co. v. De Atley, 241 U. S. 310, 36 S. Ct. 564, 60 L. Ed. 1016.

A railroad engaged in interstate commerce is, by the federal act, made liable to respond in damages to a person sustaining injury while in the employ of such carrier in such commerce, and liability follows whether such injury results in whole or in part, from the negligence of any of the officers, agents, or employees of such carrier. Plaintiff had a right to assume that the men in the car would exercise reasonable care. Reasonable care required the men in the car to observe the position of the men on the ground engaged in removing ties when about to throw out another tie when this could conveniently be done, or to call a warning when a view could not be had. It was negligence to throw the tie without any warning, when the men in the car could not see the men on the ground. If such negligence was a practice known to plaintiff, then he assumed the risk of injury. If such was not a practice known to plaintiff, then the danger arising from the negligence in this instance was not so obvious that an ordinarily careful person, under the circumstances here disclosed, would have observed and appreciated the risk and have declined to continue in the employment. It has been said:

‘Knowledge of the risk is the watchword of the defense of assumption of risk; want of due care in view thereof is that of contributory...