text:
    BLICK v. OLDS MOTOR WORKS.
    1. Master and Servant — Automobiles—Testing Tracks — Safe Place — Negligence.
    It cannot be said as a matter of law that it is tbe duty of an automobile manufacturer to construct a track used for testing purposes at such angles at various points in the curves as to neutralize the centrifugal force of the cars driven or tested upon the track while going at their maximum speed; but the track is sufficiently banked if it is so constructed as to be reasonably safe when the automobile is driven at extreme speed on the straight portions and at a less or at moderate rate of speed at curves: the duty of the master is to furnish a reasonably safe track upon which to perform the work.
    2. Same — Safe Place.
    An employer is not required by the law to furnish an absolutely safe place; the term Is relative and does not mean a place absolutely free from danger, but reasonably safe.
    3. Same — Expert and Opinion Evidence.
    Without testimony of experts in the construction of testing tracks that defendant’s track was unsafely constructed or defective or that it was desirable to traverse every portion of the track in making tests at maximum speed, a verdict in favor of defendant for the death of defendant’s servant who was engaged in testing a car and running it from 40 to 50 miles an hour was justified on the ground of want of evidence of negligence.
    Error to Wayne; Mandell, J.
    Submitted April 23, 1913.
    (Docket No. 10.)
    Decided May 28, 1913.
    Case by Ida S. Blick as administratrix of the estate of Charles Fishback, deceased, against the Olds Motor Works for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Henry B. Graves, for appellant.

      Rollin H. Person, for appellee.
   Brooke, J.

Plaintiff’s intestate, Charles Fishback, a man 35 years of age, was foreman of the erecting department of the defendant company, which at the time of the injury complained of was extensively engaged in the manufacture of automobiles. Defendant maintained, adjoining its factory at Lansing, a testing track, one-half mile in circumference. Originally the surface of this track was of ordinary dirt, but about three months before the injury to plaintiff’s intestate it was planked to the width of 16 feet around the outside of the track. At the curves the outer ends of the planks were raised for the purpose of overcoming the centrifugal force, by which a machine would be affected while being propelled around the track. On September 4, 1908, Fishback, with one Hunt, a tester, took a car upon the track to test it. After they had gone around the track three times with Hunt driving, plaintiff’s decedent took the wheel, and when making the second circuit at a high rate of speed (40 miles per hour or more) the car skidded at one of the curves; the right-hand rear wheel running over the outside edge of the planked way. Fishback thereupon cramped the car to the left in order to pull the hind wheel up on the plank again. This he accomplished, but, instead of keeping the machine on the planked portion of the way, it ran diagonally across the plank towards the center. As soon as the left front wheel struck the dirt portion of the track, he cramped the machine to the right, the wheel collapsed, Fishback was thrown from the machine upon the plank track, the machine turned over, falling upon Fishback, causing such injuries as resulted in his death in a few hours.

The declaration contains two sets of counts, one set based upon the survival act, so called, and the other upon the death act. Those under the death act were abandoned at the trial. The first count sets out the duty of the defendant and breach thereof as follows:

“And, as plaintiff avers, it thereby became and was the duty of the defendant to furnish to said Charles Bernard Fishback a safe track or roadway whereon he could inspect or cause to be inspected each automobile in manner aforesaid; and, as plaintiff avers, it became and was the duty of the defendant, in case it furnished a circular or oval track or a track with curves in it, to have the track so pitched inward at the curves as to overcome the centrifugal force of the automobile when traveling at the maximum speed necessary for the proper inspection thereof as aforesaid, and with each increase of curvature to have a corresponding increase of pitch sufficient to overcome the consequent increase in centrifugal force. Yet, as plaintiff avers, defendant did not perform its duty as aforesaid; but, on the contrary, furnished to .said Charles Bernard Fishback, at its place of business in the city of Lansing aforesaid, a planked track with curves in it of varying degrees, pitched inward at the curves, and, as plaintiff avers, there was one certain place thereon where there was a curve and where there was no pitch inward sufficient to overcome the centrifugal force of an automobile traveling at a rate of speed necessary for the proper inspection thereof, as aforesaid, and, as plaintiff avers, at the certain place aforesaid in said track, there was a sharp increase of curvature and no increase in pitch to overcome the consequent increase in centrifugal force of an automobile traveling at a rate of speed necessary for the proper inspection thereof as aforesaid; and, as plaintiff avers, the defect in said track so furnished by defendant to said Charles Bernard Fishback was not visible or apparent without measurement and was unknown to said Charles Bernard Fishback, and owing to the high rates of speed necessary to properly inspect automobiles, said track was at the place aforesaid dangerous and was not a safe place whereon said Charles Bernard Fishback could perform his duty aforesaid.”

Other counts in the declaration alleged a breach of duty on the part of defendant to furnish a properly planned and constructed left front wheel, which breach of duty, it was alleged, was a concurring cause, with the defective track, of the accident. At the close of plaintiff’s case the court directed a verdict for defendant under the first count, but permitted the case to go to the jury under the counts which charged negligence with reference to the wheel.

Special questions were put to the jury and were answered as follows:

“ (2) Was Fishback on the track in violation of the orders? ‘Yes.’
“(3) Did Fishback run off the top of the track because of his failure to drive properly or carefully? ‘Yes.’ ”

A general verdict of no cause of action was also returned by the jury.

Counsel for plaintiff says:

“Inasmuch as we think that no error was committed in the course of the trial or in the charge of the court, so far as relates to this particular alleged breach of duty (the defective wheel), we have abandoned all the counts of the declaration except the first.”

It is conceded by counsel for appellant with reference to the third question and answer that:

“The affirmative answer to this question is conclusive and the judgment is right, unless the court committed some error in receiving or excluding evidence bearing on the question, or in charging the jury on the subject, or in ruling that the question was a proper one to be submitted.”

Many errors are assigned upon the admission and exclusion of testimony and the charge of the court as bearing upon these questions and answers and the general verdict. We find it unnecessary to consider these assignments because they are of no importance if the action of the learned circuit judge in directing a verdict for defendant under the first count was correct.

It will be noted that the duty alleged is an absolute one. It is:

“To have the track so pitched inward at the curves as to overcome the centrifugal force of the automobile when traveling at the maximum speed necessary for the proper inspection thereof as aforesaid, and with each increase of curvature to have a corresponding increase of pitch sufficient to overcome the consequent increase in centrifugal force.”

Plaintiff introduced the evidence of two civil engineers familiar with railroad construction, neither of whom had ever designed or constructed an automobile testing track. They gave evidence tending to show that the pitch at some points in the track in question was insufficient to wholly neutralize the centrifugal force when the machine was moving at maximum speed. A theoretically perfect track, such as one witness described, built for an assumed maximum speed of 30 miles per hour, would have had a greater pitch at some points and less pitch at others than the track in question actually had at the time it was examined by the witness. This examination was made in August, 1910, and the track was built in the summer of 1908. The record shows that some settlement of the banked earth might have taken place in the interim. This expert witness testified, in part, as follows:

“By the red lines I have indicated the proper pitch required on this track at a given velocity for any kind of an automobile car. I am figuring the perfect pitch for a certain velocity of an automobile regardless of the tires. The tires do not enter into my computation. The weight of the car is eliminated. That does not enter into the computation. The distance between wheels does not enter into the computation. The distance between the front and the rear or the two rear and the two front wheels does not enter into the computation. The fact whether it is boards, sand, asphalt, macadam, or anything else does not enter into the computation. The size of the tires or the make or the kind of rubber does not enter into the computation.
“Q. So you think you can figure a perfect track for an automobile to go around at a certain velocity and stay on without taking into consideration at all the elements of friction?
“A. Yes, sir.
“Q. That is the way this figuring is done?
“A. I will modify that statement by saying that I figure friction altogether, because as we figure the angle the friction is expressed in the angle.
“Q. What do you call that?
“A. Regular angular friction.
“Q. Where do you get that? Is that arbitrary or an engineering rule?
“A. An engineering rule.
“Q. Do you know where that engineering rule is figured from?
“A. Yes, sir; I derive this formula here that I work—
“Q. Where did you get the formula from?
“A. I formulated this formula myself.
“Q. You made the formula?
“A. It is practically the same thing you get in any of the books. * * *
“Q. This track is perfect in design, designed for a vehicle, as you say, an automobile going around at 30 miles an hour?
“A. The red lines indicate what the inclination should be at 30 miles an hour.
“Q. That would not apply to 31 or 29?
“A. No, sir; it is arranged for 30.
“Q. It would have no application to 40?
“A. No, sir.
“Q. And so a driver that you heard testify went around at 50 miles an hour; it would have no application for him ?
“A. No, sir.
“Q. How did he stay on at 50 miles an hour on the track built for 30?
“A. He must have cramped his wheel more than otherwise. * * * In the formula that we use for all kinds of incline tracks, the weight of the car or moving object, the motor or the train, or whatever runs on the track, comes in the equation at first; but in the mathematical equation the same terms go on both sides. To make it clear, in such track as this, as I designed on this 30 miles an hour inclination, let us call it a four-foot or whatever it may be at some point, with the same certain degree of curvature; when it is a perfect track, or perfectly designed, that means that car moving at 30 miles an hour on a curve, with a certain degree of curvature, moving at that rate will normally stand right still, not having any tendency to move out toward the outer edge or move down toward the lower edge.
“Q. But in taking the curve you will have to move your steering apparatus to go around the curve?
“A. Yes, sir; on every curve you have to move that.
“Q. Go ahead.
“A. You have to turn the steering gear to go around any curve; you cannot keep your steering gear straight ahead and try to get around a curve without disastrous results.
“Q. Go ahead further.
“A. If that car goes at a greater rate of speed than that track is designed for, then the car will tend to tread up toward the higher part of the track, then the weight will enter in, and the weight of the car will affect it, and if there are spokes on the wheels as mentioned, or cleats on the wheels, it will help to keep that from skidding; if the ca,r runs at a less speed than the velocity designed' on that inclination, the car will tend to drop down to the lower side of the track, so in the construction of an inclined track the practice is to design the track for the high rate of speed, and that would give it greater inclination, and at all lesser rates of speed there would be a tendency to drop down, but that is less hazardous and less dangerous to drop down toward the level portion. The outer elevation is arranged for the higher rate of speed in all properly designed tracks.
“Q. Explain in detail what is the effect of having a change in curve there, and then no change in pitch. (Objected to.)
“The Court: Answer it.
“Q. Explain in your own language.
“A. To take some track that is designed with a certain degree of curvature, let us use the same velocity of the car, supposed to go 30 miles an hour, but as we advance we strike a change in the curvature and a sharper degree of curvature, where the curvature is sharper than where we are; passing from a lighter curvature to a greater curvature, and if the track is not raised higher at the outer point the incline steeper where you go to the sharper curvature, the tendency is to shoot right off the track, and if you are going at the same rate of speed, 30 miles an hour, to a lower or slighter, from a steeper or a high curve, and it is not arranged for that, as you approach the lower curvature on the same speed, or on the same rate of speed that is not designed for that, the car has a tendency to go down toward the bottom; that is as clear as I can explain it. (Witness continues:) If a track is pitched four feet and 16, that is 25 degrees straight down, and you go down that track 100 feet from the outside edge to the inside, you are traveling on a 4 per cent, grade. That is not considered a very steep grade at all.”

Plaintiff’s first witness, a tester of experience, testified that in testing a car:

“It was necessary to drive it at different speeds, slow and high; a car might work all right at slow speed and not work all right at high speed, or vice versa. * * * We drive from the lowest speed; from 10 to 50 miles an hour.”

We do not think it can be said as a matter of law that it was defendant’s duty to so construct every portion of its track as to neutralize all centrifugal force at the maximum rate of speed. It may have been— we believe it was intended — that the extreme speed necessary at times to be used should be used upon the straight or nearly straight portions of the track, and that the curves should be negotiated at a lesser and safer speed. It is obvious that a curve pitched for a speed of 50 miles per hour could with difficulty be traveled by a heavy car at the rate of ten miles per hour. The necessities of the case being considered, it is therefore apparent that a compromise in some degree must be made. It is in evidence that the car in question going at 40 miles per hour could be stopped with the brakes in approximately 100 feet, so that from a very high rate of speed it was easy to slow down at the curves to a speed at which they could be negotiated in safety. Having in mind the object to be attained by the construction of the track, viz., the testing of cars thereon at varied rates of speed, we are of opinion that the alleged defect pointed out by the expert was not such an one (if in fact a defect at all) as would have warranted the court in submitting to the jury the question of defendant’s negligence in the method of construction. No practical automobile manufacturer gave evidence to the effect that the track, as constructed, was not reasonably safe for the purpose for which it was designed; nor does the evidence of the experts, in our opinion, tend to support that conclusion. It is not shown by the record that it was practicable or possible or even desirable to traverse every portion of the track at a uniform rate of speed; indeed, the contrary appears, at least by inference.

The duty which defendant owed in the premises to plaintiff’s intestate was to furnish him a place or instrumentality reasonably safe, in which or with which to perform the services required of him. Noble v. Steamship Co., 127 Mich. 103 (86 N. W. 520, 54 L. R. A. 456, 89 Am. St. Rep. 461) ; Geller v. Manufacturing Co., 136 Mich. 330 (99 N. W. 281); 7 Words & Phrases, p. 6283, lays down the rule as follows:

“The phrase ‘safe place to work,’ within the rule requiring a master to furnish a servant a safe place to work, is necessarily relative, and does not mean a place absolutely free from danger, but means a place that is reasonably safe” — citing cases.

See, also, 26 Cyc. p. 1097, and cases cited.

There is no testimony in this record which in our opinion tends to establish a breach of this legal obligation. The testimony of plaintiff’s witnesses is to the effect that they used the track daily for many weeks prior to the date of the accident. One witness produced by plaintiff says:

“I should imagine I went around the track every day 100 to 150 times. I cannot say for how long a time. I remember they ordered us on the track from the time the track was built. Of course, it was in summer time, and they were slack, and we did not have the full number of cars to test out then, and we were out on the track most of the time. I went around the track a great many thousand times. I don’t know what speed. I didn’t have anything to indicate the rate of speed. We were going perhaps at different speeds. The speeds vary. On a wet day you cannot go as fast as on a dry day. I have driven, I think, as fast as 45 miles an hour. I can’t say that I did that often. Thirty miles an hour was our average speed. We took that speed because that was the speed that we were ordered to take as near as we could. There was an order put up — I cannot say when — about the speed of the cars on the track. I think that required 30 miles an hour. I don’t remember when that notice was put up. I never ran off the track. I steered so I kept on.”

Another witness for plaintiff testified:

“I could not say how many times I have been around the track, but it was a good many times. Sometimes I drove rapidly. It is hard to tell how fast, sometimes 45 miles an hour. I don’t know whether I used to go 50 miles an hour; I was too busy engaged with the steering wheel. I dare say I have been around that track 50 miles an hour. I have seen other men going around at 50 miles an hour.”

Still another of plaintiff’s witnesses testified:

“I couldn’t remember the exact time the track was put in there — around about June. I know that the track was there something like three months when the accident happened. That is my judgment. I had been on it about every working day. I had been around it some six or seven times a day in different cars, four or five. I think we would average five different cars a day on it. I tested all that we turned out. It would run up from 300 to 500,1 should judge. I had always kept on the track. I had never gone off. We would always skid on the turns if going at a high speed.
“Q. If you always skidded, could Mr. Fishback have gone around without knowing that you skidded?
“A. Yes; might skid a little but not any to speak of.
“Q. It was just a little skidding?
“A. Just a little bit, enough there so you noticed the wear on the tires.
“Q. What do you mean by a little skidding?
“A. A certain amount of side motion to that car.
“Q. A foot or two feet; what do you mean?
“A. I have skidded two feet.
“Q. You have skidded two feet?
“A. Yes, sir; but not very often oh that particular track.
“Q: That is, at very high speed?
“A. Yes, sir.
“Q. What would be the average speed that you would skid?
“A. It would depend on the speed; if you were going around 50 miles an hour, there were times that you skidded probably a foot or two feet; skidded, I think there were times that I skidded the rear end of the car two feet.
“Q. You say that is not the average — what was the average at 50 miles per hour?
“A. I don’t know what the average was, I don’t suppose it would average a foot. * * * If I was
going down the side of the track 50 miles an hour, I would slow up before I hit that turn. Slow up to 40 miles an hour. It is not perfectly straight before we reach the turn. There is a slight curve, but not anything like that. If I was going 40 miles an hour, I would not slow up as a rule. I did not consider it sufficiently dangerous to require slacking at 40. I can’t say that Mr. Fishback slackened up before he got there. We were not coming at anything faster than 40 at that place on the track, I don’t think.”

All the witnesses agree that the testing of automobiles is a hazardous occupation; that to drive a machine on a straight level road at 50 miles per hour is dangerous, and we might well take judicial notice of this fact without testimony.

Assuming that both special questions were improperly propounded or improperly answered, and that plaintiff’s intestate not only had a right to be upon the track at the time he received his injury, but that in driving the car as he did he exercised reasonable prudence, there is still lacking evidence of actionable negligence upon the part of defendant.

Decedent is shown to have been an expert in the line of his duty, having held the high position of foreman for several years prior to his death. He had, himself, driven cars many times around this track. The tendency of an object to fly off at a tangent when being propelled rapidly around a curve (centrifugal force) is a matter of common knowledge possessed by all intelligent adults. With the operation of this well-known law upon automobiles decedent was, through experience, peculiarly familiar, so it might well be said —though it is unnecessary in this case — that he assumed the risk of injury from driving upon the curve at so high a rate of speed.

The judgment is affirmed.

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    HOTCHKISS v. WEINMANN-MATTHEWS CO.
    Appeal and Error — Savins Questions for Review — Exceptions.
    Exceptions duly taken are essential to the review, on error, of questions raised on the trial and on motion for a new trial pursuant to 3 Comp. Laws, § 10504 (5 How. Stat. [2d Ed.] § 12965).
    Error to Washtenaw; Kinne, J.
    Submitted April 25, 1918.
    (Docket No. 61.)
    Decided May 28, 1913.
    Case by Mary J. Hotchkiss against the WeinmannMatthews Company for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Lee N. Brown, for appellant.

      John P. Kirk, for appellee.
   Brooke, J.

In this case there are six assignments of error. The brief for appellant does not point out, nor does an examination of the record disclose, any exceptions upon which said assignments are based. This court can consider only such assignments of error as are founded upon exceptions duly taken.

A motion for a new trial was made and denied. No exception was taken, but error is assigned upon such denial. 3 Comp. Laws, § 10504 (5 How. Stat. [2d Ed.] § 12965), permits a review of the action of the lower court in refusing a new trial when an exception is taken, but not otherwise. Conger v. Hall, 158 Mich. 447-449 (122 N. W. 1073).

The judgment is affirmed.

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author:
      Brooke, J.
      Brooke, J. Brooke, J. In the original opinion handed down in this case (ante, 653), it was held that Act No. 104 of the Public Acts of 1909 was constitutional under the authority of Sonsmith v. Railroad Co., 173 Mich. 57 (138 N. W. 347). In the motion for rehearing it is pointed out that in the instant case a reason exists for holding the act unconstitutional which was absent in the Sonsmith Case.

text:
    FERNETTE v. PERE MARQUETTE RAILROAD CO.
    1. Constitutional Law — Master and Servant — Statutes—Fellow-Servants — Liability of Railroad fob Negligence.
    Act No. 104, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §§ 4110-4116), abolishing the fellow-servant rule as to common carrier railroads, is constitutional. Sonsmifh v. Railroad Co., 173 Mich. 57 (138 N. W. 347).
    2. Railroads — Stations—Signal Tower.
    Within the meaning of a rule of defendant railroad company requiring a train stopping between stations to send back a flagman with signals, and of rules providing that extra or delayed freight trains must approach side tracks, water tanks, and fuel stations with train under control, and that inside yard limits at stations where yard-limit posts are erected and between switches at other stations, signals need not be sent, out except under special circumstances, a place known as “Hoyt” designated as a station on defendant’s time card, at which point a telegraph operator was maintained and trains were required to register, situated near the crossing of two roads, near a target and to which running orders were issued from other points, was a station, so that the engineer of a train governed by the rules was required to have his train under control and to take precautions to avoid a collision in approaching .the station.
    3. Same.
    And the rules must be so construed as to include within the term “station” so much of the track as trains would commonly be compelled to occupy if the crossing signal was set against them.

      4. Same — Yard Dimits.

      Held, also, that defendant’s train, on the occasion of the collision in question, was within the “yard limits.”
    5. Same — Evidence.
    It is the duty of the court, so far as possible, to construe and apply published rules of a railway corporation.
    6. Same — Contributory Negligence — Violation of Rules.
    If the servant violates a rule of his master and such violation is the proximate cause of his injury, he is guilty, as matter of law, of contributory negligence.
    7. - Same — Railroads—Operation of Trains.
    Under regulations promulgated by defendant railroad company, advising its employees that no signal need be sent out by a train inside the yard limits unless curves or foggy or stormy weather caused the view of an approaching train to be obstructed, it was a question of fact whether plaintiff, whose train was standing near a curve, at a time when snow was falling, should have signaled another freight train that he knew might be sent out behind him.
    8. Same.
    And although the rule absolutely required that signals should be sent out if storm, darkness, or the location of plaintiff’s train demanded, it was not error prejudicial to defendant to permit the jury to consider the matter of notice to him that a special train might follow as tending to add to plaintiff’s obligation.
    9. Master and Servant — Negligence—Degrees.
    Where the injury occurred, either because of the negligence of plaintiff or because of negligence of a fellow-servant, and the jury were instructed that if both were guilty of negligence, in that each neglected some duty imposed by the rules, which, if performed would have prevented the accident, their verdict should be for defendant, and it appeared that the jury must have found that plaintiff was not chargeable with negligence, no prejudice to defendant was made out even if no question or .issue relating to the degrees of negligence should have been submitted.
    10. Constitutional Law — Master and Servant — Fellow-Servant.
    Nor is Act No. 104, Pub. Acts 1909, unconstitutional on the ground that a greater measure of damages obtains under the statute as to railroad corporations in case of the death of an employee than if he survives: the intent of the legislature was to compensate the persons in whose interest the action was instituted as in other cases; and no double liability is created so as to permit suits to be brought by the administrator successively in behalf of decedent and in behalf of the class mentioned by the statute.
    on rehearing.
    1. Carriers — Master and Servant — Federal Employers’ Liability Act — Statutes—Amendment.
    While plaintiff’s remedy, under uncontradicted testimony. in behalf of defendant showing that the train which he was engaged in operating contained cars that were billed to points outside the State of Michigan, must be held to have been under the Federal liability statute (35 U. S. Stat. 65, chap. 149), rather than under the State law (Act No. 104, Pub. Acts 1909), nevertheless, the court, on error, will treat the declaration as amended, so as to permit recovery under the act of Congress, where the pleading sets out sufficient facts to charge defendant with liability if the facts relating to interstate commerce had been averred.
    2. Same — Statutes—Damages.
    The damages of a plaintiff who survived his injuries are the same under State and Federal statutes.
    Error to St. Clair; Tappan, J.
    Submitted April 9, 1912.
    (Docket No. 84.)
    Decided May 28, 1913.
    Rehearing denied January 5, 1914.
    Case by Reuben J. Fernette against the Pere Marquette Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Bills, Streeter & Parker and Lincoln Avery, for appellant.

      Stevens, Graham & Stevens, for appellee.
    The cut shown on the opposite page is a reproduction of the blue-print referred to in the opinion.
    An examination of the map published herewith will aid to a proper understanding of the issues involved in this case. The main line from Toledo to Saginaw runs practically north and south. It crosses the Michigan Central nearly at right angles at the point “B.” Just south of the Michigan Central and west of the Pere Marquette is located the signal tower for the crossing. This tower is designated as “Hoyt.” South from the crossing at a distance of 400 feet stands the “Home Signal.” Still further south 1,200 feet stands the “Distant Signal.” About 300 feet south from the “Distant Signal” there comes in upon a curve from the east defendant’s main line from Port Huron. From this point north a distance of some 1,600 or 1,700 feet the main line from Port Huron and the main line from Toledo run side by side upon the same right of way. They are joined by a switch just south of the Michigan Central crossing. A post set at a point 4,900 feet south of the Michigan Central crossing marks the yard limit on the Toledo main line. There is no post marking the yard limit on the Port Huron line. At the “Home Signal” there enters from the west a wye connecting with the Saginaw Belt Line. The time-table in use by defendant at the time of the accident names “Hoyt” as one of the 21 stations between Saginaw and Port Huron. It is located just south of Saginaw, the running time between “Hoyt” and Saginaw being but five minutes. The time-table contains the following: “First class trains will register by register ticket at Hoyt and Tappan. Second, third class and extra trains will register in books at Hoyt and Tappan.” A telegraph operator is maintained at Hoyt. There is neither a water tank nor'coal dock at this point upon defendant’s lines. Passengers do not take or leave defendant’s trains at Hoyt nor is freight accepted or delivered there.

      The plaintiff was rear brakeman upon an extra freight train (No. 174) which left Port Huron very early in the morning of January 20, 1910. This train arrived at Hoyt about 6 o’clock. Finding “Home Signal” set against it, it stopped with the engine about 100 feet south of the “Home Signal” and the rear end of the train just outside the “Distant Signal.” It stood in this position eight or ten minutes when it was struck in the rear by extra freight train No. 399, also running from Port Huron to Saginaw. Plaintiff’s train consisted of two engines, twenty-five loaded cars, five empties and a way car. Extra No. 399 when it left Port Huron consisted of a single engine and ten cars. Four cars were set off at Yale, leaving but six in the train at the time of collision.
    When plaintiff's train arrived at Hoyt no flag, light, or other signal was placed out to protect the rear of the train. The engineer of extra No. 399 saw plaintiff’s train when he was about 600 or 700 feet distant. He made every effort to stop but was unable to do so. His engine crashed into the way car of extra 174, practically demolishing it. Plaintiff was in the way car at the moment of impact and received injuries for which he seeks compensation in this suit.
    Defendant’s rule No. 99 is as follows:

      “When a train stops between stations or is delayed under circumstances in which it may be overtaken by another train the flagman must immediately go back with danger signals with not less than two torpedoes, and, in addition, by day, with a red flag, and, in addition, by night, with a red and white light and not less than two red fusees; and at night place a lighted red fusee in the center of the track, not less than 500 feet behind the rear of the train, proceed by day or night a sufficient distance from the rear of the train to stop any train moving in the same direction. The flagman must go not less than one-half mile (16 telegraph poles) distant from the rear of his train until a point is reached where the danger signal can be seen not less than one-quarter of a mile (8 telegraph poles) by the engineman of an approaching train, at which point the flagman will at once place two torpedoes on the rails opposite each other so that when exploded they will make, one report. The flagman will remain at such point until a train has arrived or until he is recalled.”
    Rule 91c reads:
    “All extra and delayed third class freight trains must pass into and through all stations and must approach side tracks, water tanks and fuel stations with train under control, expecting to find a train at such point. Speed must be reduced so that it shall not be possible to strike any train that may be within the station switches or that may be taking fuel or water. In such cases the responsibility for safety rests on the approaching train. When fog, snow, darkness, dangerous places or other circumstances render it necessary, a train occupying main track at a station must, as an additional precaution, be protected as per rule 99. This will not, however, relieve the approaching train of responsibility for accident.”
    Rule 98d is as follows:
    “Rule 98d. When a train is occupying the main track inside of yard limits at stations where yard limit posts are erected or between switches at other stations no signal will be sent out to protect against a train of the same class, except where by curves, foggy or stormy weather the view of an approaching train is obstructed in which case both trains are responsible in case of collision, but an inferior train must at all times clear or protect against a superior train.”
    It was the contention of plaintiff that his train (extra 174) was standing at a station (Hoyt) and was therefore protected under the terms of rule 91c; that under said rule it was the duty of the engineer of extra 899 to approach Hoyt in such a manner as to render a collision impossible and, therefore, a collision having occurred resulting in injury to plaintiff, he could recover therefor against the defendant because of the negligence of his fellow-servant (the engineer of extra 399) under the provisions of Act 104, Public Acts of 1909.
    Defendant’s contentions are:

      First. That, even conceding the accident and consequent injury to plaintiff was the direct and proximate result of the negligence of Hopkins, the engineer of extra 399, there can be no recovery because Act No. 104 of the Public Acts of 1909 is unconstitutional.

      Second. That, independent of the question of the constitutionality of the statute, the defendant was entitled to a directed verdict because: (a) “Hoyt” is not a station within the meaning of rule 91c; and (b) if “Hoyt” is a station within the meaning of that rule plaintiff’s train was not standing at that station at the time of the collision, but was standing between stations and was therefore governed by the provisions of rule 99.

      Third. It was the duty of the court to construe and apply the rules.

      Fourth. Plaintiff’s failure to obey rule 99 was the proximate cause of the accident.

      Fifth. The court erred in the charge as given.

      Sixth. The court erred in the admission and exclusion of testimony.
   Brooke, J.

(after stating the facts). Consideration will be given to the positions of defendant in their order.

First. This question is now settled adversely to the contention of defendant. Sonsmith v. Railroad Co., 173 Mich. 57 (138 N. W. 347). In reaching the conclusion set out in the opinion in that case, this court gave careful consideration to the arguments upon that question contained in defendant’s brief in the case at bar.

Second, (a) Was “Hoyt” a station-within the meaning of rule 99c? We are disposed to hold that it must be so considered. It is true that the ordinary business usually transacted at a railway station was not done by the defendant at this point. Many of the characteristics of a station, however, it unquestionably had. In the first place it was designated as a station on defendant’s time card, a telegraph operator was maintained there and books were kept in which all second, third class and extra trains were required to register. This rule necessitated the stopping of the train, or at any rate compelled it to run so slowly'that the conductor could jump off, register, and then board it while in motion. Moreover it was situated at a point within the yard itself. The yard limit on the Toledo main line was fixed at a point 4,900 feet south of the Michigan Central crossing. The appellation “Hoyt” as shown by the exhibits seems to have been applied to the signal tower only which is located directly where the two roads cross. While the signals were operated from the tower and the books were kept there, we think it cannot be said that the appellation covers the structure only but should be applied reasonably to include the environment. A further reason for regarding “Hoyt” as a station is furnished by the fact that the defendant issued running orders to its trainmen from Port Huron (or other points) to “Hoyt.” The dictionary definition of the word “station” is not of much aid in determining the character of the place in question. Whatever the technical or restricted meaning of the word may be, in construing rule 91c, it certainly would cover any place where trains usually or ordinarily stopped. The very purpose of the rule is to protect trains at such points from the possibility of collision from the rear. No train can make the crossing unless the target is set in its favor. If the target stands against it as it did in the case of the plaintiff’s train on the morning in question, the train must wait until the obstruction is removed and the signal to proceed is given. At such a point, therefore, there is always a possibility that a train will be held up, and the engineer of a train governed by the rule is bound to take such precaution as is therein prescribed to avoid a collision.

(b) Was plaintiff’s train at the station? The rule (91c) provides that:

“All extra and delayed third class. freight trains must pass into and through all stations and must approach side tracks, water tanks and fuel stations with train under control expecting to find a train at such point. Speed must be reduced so that it shall not be possible to strike any train that may be within the station switches or that may be taking fuel or water.”

It is said that this train was not at the station, that it was not within the station switches, and that it was not within the yard limit as there is no post on the Port Huron main line marking such limit. The engine of plaintiff’s train stopped at a point about 100 feet south of the home signal. This was practically as close as it could go to the signal tower so long as the target was set against it without being derailed. We think the word as used in the rule should be held to be broad enough to cover so much of the track adjacent to the structure as is commonly used by trains when they are compelled to stop by the adverse signal. It is true the train was not within station switches but it was in the immediate vicinity of side tracks in approaching which the rule commands caution.

We are of opinion, too, that it must be said that plaintiff’s train stood within yard limits at the time of collision. While there was no post on the Port Huron main line defining the yard limit there was such a post on the Toledo main line, and it was located some 3,000 feet south of the point where the rear end of plaintiff’s train stood at the time it was struck. It seems scarcely reasonable to say that a train standing upon the Toledo main line would be protected because within the yard limits while one upon the Port Huron main line, only a few feet distant and upon the same right of way, would not be so protected.

Third, fourth and fifth. We quite agree with counsel for defendant that it was the duty of the trial court to construe and apply the rules so far as was possible under the facts of the case. Great Northern R. Co. v. Hooker, 170 Fed. 154, 95 C. C. A. 410; Northern Pacific R. Co. v. Cummiskey, 137 Fed. 508, 70 C. C. A. 92.

This court has held that the violation of a rule by an employee where such violation is the proximate cause of the accident is negligence as a matter of law. Enright v. Railway Co., 93 Mich. 409 (53 N. W. 536); Whalen v. Railroad Co., 114 Mich. 512 (72 N. W. 323); Fluhrer v. Railway Co., 121 Mich. 212 (80 N.' W. 23) ; Veit v. Railroad Co., 150 Mich. 358 (114 N. W. 233); Moyer v. Railroad Co., 159 Mich. 645 (124 N. W. 542).

There is some testimony in the record which indicates that it was snowing at the time of the accident. There is also some difference of opinion as to the condition as to light or darkness at the moment of collision. It is unquestioned that plaintiff’s train stood at a point in the straight track just beyond a curve. Whether these conditions imposed a duty upon plaintiff to protect the rear of his train under rule 91c was, we think, fairly a question of fact for the jury under proper instructions. Upon this point the court charged as follows:

“The essential questions of fact for your determination are (1) whether or not the defendant company was guilty of negligence that was the proximate cause of the accident. (2) Whether the plaintiff himself was guilty of contributory negligence that was the proximate cause of the accident. (8) Whether the negligence of the defendant and the negligence of the plaintiff concurred to produce the accident. And if you find that the negligence of the defendant and the contributory negligence of the plaintiff both concurred in producing the accident, then you are to determine from the proofs whether the contributory negligence of the plaintiff was of less degree than the defendant’s negligence; and that means, of course, the negligence of the engineer, Hopkins. You are further instructed that the negligence of either the plaintiff or defendant is the proximate cause of the accident, ’if you find from the proofs that it was the reasonable, natural, and probable cause that in itself produced the accident. In determining these questions of fact if you find that plaintiff’s negligence was the proximate and moving cause of the accident and of equal or greater degree than the negligence of defendant, then the plaintiff cannot recover. If, however, you find that the negligence of the defendant and the contributory negligence of the plaintiff concurred to produce the accident and you also find as a fact that the negligence of the plaintiff was of a lesser degree than the negligence of the engineer, Hopkins, then the plaintiff may recover.
“So far as it relates to train No. 174,240 upon which plaintiff was injured, and also to No. 399 in charge of engineer Hopkins, Hoyt was a station point for the purpose of registering these, trains. Under the rules of the company and the time-table introduced in evidence, it was the duty of Conductor Hudson, in charge of train No. 174,240, to sufficiently stop his train to register it. If it was necessary to bring the train to a full stop in order to complete registration as the rules require, then it was proper to stop the train. Now, while you are to consider that Hoyt is a station for the purpose of registration of these extra trains, as I have explained, and Conductor Hudson had a right to bring his train to a full stop for that purpose, yet I shall leave it for you to determine as a question of fact whether the Hudson train was so situated at the time of the accident as to require the plaintiff, as the rear brakeman, to make use of danger signals as specified by rule 99, or to take any other precaution specified by any other rule received in evidence.
“Now, gentlemen, considering the duty of the plaintiff, Fernette, in the matter. You are to take into consideration that he had received information that a special freight train might be sent out after his train, together with all other surrounding conditions. While you are to regard Hoyt as a station for the purpose of registration of that Hudson train, and that Hudson’s train was properly brought to a stop at that point, yet it is for you to determine from all the proofs whether or not the plaintiff should have put out danger signals to protect his train, as required by rule 99 or any other rule governing the situation. In considering his duty in this respect you will recall and take into consideration rules 91c, 98d, 99, and all other rules received in evidence that bear upon the stoppage of the two freight trains at Hoyt at the time of the accident, and the duties of plaintiff and other employees in charge of them. In this connection you will consider the character of the place where the trains collided, the condition of light or darkness, storm, and so forth. You will determine whether or not on account of the location, storm or darkness, and the information that he had as to the possibility or probability of a following extra train he should have immediately protected his train upon its stoppage at Hoyt. If, on account of storm or darkness and location, the engineer, Hopkins, did not and in the exercise of ordinary care and caution could not see the Hudson train in time to prevent the accident, and these conditions of weather, light, and location were such that under the rules plaintiff should have protected his train by placing out warning signals as required, his failure to do so constitutes contributory negligence that becomes the proximate cause of the accident, and he cannot recover, if you so find.
“Now, as to the duty of Hopkins. In judging of the duty of Engineer Hopkins in the management of his train, you are to take all the proofs as to the conditions of light, darkness, storm, and so forth into consideration. You should also consider the evidence to the effect that he was informed that a special train had preceded his train. You should consider whether he could see and distinguish the Hudson train from a point where it entered upon the curve at its eastern end about a half mile from Hoyt. If, owing to darkness or storm he was not able to see or distinguish the train ahead of him, he had a right to continue with his train using only such precautions as the rules prescribe. If he was doing all that a careful engineer should in the management of his train, and was taking all the precautions that the rules of the company prescribe for existing conditions, and then acting carefully and prudently he could not see the Hudson train in time to stop his own train and prevent the collision, and you also find that Fernette in the exercise of his duties under the rules of the company should have put out warning signals for the following train, then Hopkins was not guilty of negligence that was the proximate cause of the accident. If, however, you are convinced that Engineer Hopkins saw, or even though he did not see, but in the exercise of ordinary care and prudence he should have seen the Hudson train from the head of the curve or from any intervening point when he could have brought his train to a stop and prevented the accident, then he was guilty of negligence in colliding with the Hudson train. It would be his duty to avoid apparent danger if he could do so in the exercise of skill and care. This is true wholly irrespective of any and all rules. He is presumed to have seen and known of any danger that a man of ordinary care and prudence should have seen and known under like conditions. Failure to do so on his part would be negligence.
“If under these instructions, you find that both Engineer Hopkins and plaintiff Fernette were guilty of a violation of the rules of the company, or were otherwise each guilty of negligence, and that the negligence of both concurred to produce the accident, then you are to determine whether the proofs show that the contributory negligence of the plaintiff was of lesser degree than that of Engineer Hopkins. If they fail to so establish the fact, plaintiff cannot recover. If they do, he may recover as I have explained. * * *
“If the jury find that Hopkins, the engineer of the following train, and Fernette were both guilty of negligence in that they each neglected some duty imposed by the rules which if performed would have prevented the accident, then your verdict should be for the defendant, for in such case the negligence of each would be equal, and where it is equal there can be no recovery.”

This portion of the charge is criticised by counsel for defendant in several particulars. They say that the court—

“Submitted to the jury, as a question of fact, the construction, interpretation, and application of the rules at the precise point where the plaintiff’s train was standing when it was struck.”

And again:

“The court should have definitely charged the jury which rule applied as a matter of law.”

It will be noted that the court did charge that Hoyt was a station and that plaintiff’s train was properly brought to a stop there. As already pointed out, we are of opinion that it cannot be said as a matter of law that plaintiff was not negligent in failing to protect the rear of his train even though rule 91c applied. His duty to so protect arose under this rule “when fog, snow, darkness, dangerous places or other circumstances render it necessary.” By instructing that Hoyt was a station it is obvious that Hopkins, the engineer of extra 399, was bound to use the caution demanded by rule 91c. The alleged darkness and falling snow and the curve at that point were such conditions, however, as might be held by the jury to have excused his failure to comply with the terms of that rule, in which event the jury must have found that the proximate cause of the accident was plaintiff’s failure to protect his train under the exceptional conditions enumerated in rule 91c.

Counsel for defendant say:

“The facts are undisputed and it was a question of law for the court to say whether rule 99 or rule 91c applied.”

We think it clear that the controlling facts are not undisputed. Plaintiff and his fellow brakeman both testified that it was not snowing at the time of the collision and that “it was fairly good daylight, you could see quite a distance.” While Hopkins testified in behalf of defendant that:

“It was snowing quite a little. It was quite dark yet. As dark as it was any time during the night.”

The court charged the jury that:

“You are to take into consideration that he (plaintiff) had received information that a special freight train might be sent out after his train. * * * You will determine whether or not on account of the location, storm, or darkness, and the information that he had as to the possibility or probability of a following extra train he should have immediately protected his train upon its stoppage at Hoyt.”

It is true, as urged by defendant, that the rules do not vest any discretion in the trainmen. Rule 91c requires the trainmen to observe the cautionary measures “expecting to find a train at such a point,” and rule 99, under the conditions there set out, as obviously imposes the enumerated cautionary duties quite irrespective of the fact that the trainman has or has not knowledge of an on-coming train. But how was defendant prejudiced by the instruction? It simply permitted the jury to consider an immaterial fact in determining whether or not plaintiff was negligent in not protecting his train. It was a fact, too, which added to plaintiff’s obligation instead of diminishing it. If considered by the jury it was prejudicial to plaintiff rather than to defendant.

We are disposed to agree with counsel for defendant that this was a case where “there was no question of degrees of negligence to submit to the jury.” We think that this unfortunate accident occurred through the negligent act of either the plaintiff or of Hopkins but not of both. But again we inquire how was defendant prejudiced by this instruction. The jury were plainly told that if both plaintiff and Hopkins—

“Were guilty of negligence in that they each neglected some duty imposed by the rules, which, if performed, would have prevented the accident, then your verdict should be for the defendant, for in such case the negligence of each would be equal, and where it is equal there can be no recovery.”

This instruction was given after the jury had retired and had been recalled upon request of defendant’s counsel for the purpose of receiving it. By their verdict the jury must have found that plaintiff was not guilty of negligence in failing to protect his train in accordance with either rule 91c or 99. The question of degrees of negligence, therefore, disappears from the case in the light of this instruction and of the verdict.

We do not desire to be understood as determining that the rule laid down in the last foregoing excerpt from the charge is the correct rule; that question is not now before us.

Sixth. Errors are assigned upon the admission and exclusion of certain testimony. In view of our conclusions upon the meritorious questions involved they become unimportant.

We find no reversible error in the record and the judgment is affirmed.

Brooke, J.

Since the foregoing opinion was written a motion for rehearing has been made in the case of Sonsmith v. Railroad Co., 173 Mich. 57 (138 N. W. 347).

It is admitted that in this case, as in the Sonsmith Case, the employee having survived his injuries and himself begun the suit, the measure of the damages recoverable under this statute and the common law is the same. But it is said that if an injury results in the death of the injured person, the measure of the damages recoverable under this act is not the measure of the damages otherwise recoverable and is greater and more onerous. As a consequence, so the argument goes, common carrier railroads are burdened beyond others in like cases offending and the statute is therefore invalid. The specifications of this contention appear to be two, one that the administrator is in terms permitted to recover for the class entitled thereto “all damages which may result from the negligence,” etc.; the other that successive actions may be brought in different interests, as by the personal representative in the interest of the deceased and also in the interest of the class of persons mentioned in the statute. In part the last stated position is grounded upon section 6 of the law, which is:

“Nothing in this act shall be held to limit the duty of common carrier railroad companies, or impair the rights of their employees under existing laws of the State.”

The act in question is like ifiany others which rather crudely express the legislative purpose and yet employ words and terms from which the purpose may be fairly determined. There is involved in any theory of an action for damages for personal injuries the idea that plaintiff has suffered injury for which a pecuniary compensation may be recovered. The judgment is supposed to be the compensatory measure of the damages sustained by the plaintiff. The words employed in the statute import pecuniary damages in an amount which will compensate the persons in whose interest the suit is begun. Damages which may result to them is, we think, the liability intended to be established by the act. It has been said of a similar provision of a similar act, in comparing it with 9 and 10 Viet., chap. 93, known as Lord Campbell’s Act:

"The distinguishing features of that act are identical with the act of Congress of 1908, before its amendment : First, it is grounded upon the original wrongr ful injury of the person; second, it is for the exclusive benefit of certain specified relatives; third, the damages are such as flow from the deprivation of the pecuniary benefits which the beneficiaries might have reasonably received if the deceased had not died from his injuries.” Vide Lurton, Justice, in Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59 (33 Sup. Ct. 192).

As to the second specification, it is to be said that the act in question does not provide that an action begun by the injured employee, or that the right of action given him by the act, shall survive his death. It appears to be contended that the right survives by virtue of 3 Comp. Laws, § 10117 (5 How. Stat. [2d Ed.] § 12761), which provides that:

"In addition to the actions which survive by the common law, the following shall also survive; that is to say, actions * * * for negligent injury to persons. * * * ”

It has been held that the right of action which survives under this section is distinct from that given by 3 Comp. Laws, § 10428 (5 How. Stat. [2d Ed.] § 13703), to the personal representative for the pecuniary injury resulting from the negligent injury. It has never been held or supposed that there could be a right of action under the survival act and also a right of action under the death act. It was said in Carbary v. Railway, 157 Mich. 683. 685 (122 N. W. 367):

“But it must be admitted that there is not a double remedy, and that the existence of one cause of action is entirely inconsistent with the existence of the other.”

We think it clear that the right of action, given by Act No. 104 to the injured employee survives his death and may be begun by his personal representative under 8 Comp. Laws, § 10117, but that no double liability is thereby created.

The obvious purpose of the act in question is to change the common-law rules as to liability of common carrier railroads and not to interfere with or change the measure "of damages as already fixed by existing law. Section 6 of the act quoted above is persuasive of that intent and the fact that the act contains no repealing clause is further evidence thereof.

Steere, C. J., and Moore, McAlvay, Stone, and Ostrander, JJ., concurred.

on rehearing.

Brooke, J. In the original opinion handed down in this case (ante, 653), it was held that Act No. 104 of the Public Acts of 1909 was constitutional under the authority of Sonsmith v. Railroad Co., 173 Mich. 57 (138 N. W. 347). In the motion for rehearing it is pointed out that in the instant case a reason exists for holding the act unconstitutional which was absent in the Sonsmith Case.

In the original opinion handed down in this case (ante, 653), it was held that Act No. 104 of the Public Acts of 1909 was constitutional under the authority of Sonsmith v. Railroad■ Co., 173 Mich. 57 (138 N. W. 347). In the motion for rehearing it is pointed out that in the instant case a reason exists for holding the act unconstitutional which was absent in the Sonsmith Case.

It is shown by the record that the two trains which came into collision were running between points within the State of Michigan, and that in each of the trains there were two cars carrying merchandise billed to points outside the State.

It is defendant’s contention that, because of this fact, plaintiff, at the time of his injury, was engaged in interstate commerce, and, therefore, if entitled to recover at all, could recover only under the Federal employers’ liability act (Act of April 22, 1908, 35 U. S. Stat. 65, chap. 149).

It is further urged that Act No. 104, Public Acts of 1909, should be held unconstitutional because it is not limited in its terms to the liability of common carriers to their employees while employed in intrastate commerce. It is held in Second Employers’ Liability Cases, 223 U. S. 1 (32 Sup. Ct. 169), that the Federal net is plehary, exclusive, and supersedes State legislation covering the same field. It may be assumed that the legislature, in passing the act in question, had no intention of regulating interstate commerce, a subject wholly within the jurisdiction of Congress. We do not understand it to be questioned that the State may, within constitutional limitations, impose proper regulations upon intrastate commerce. We have held that the act in question does not constitute an infraction of those limitations (Sonsmith Case). We are of opinion, therefore, that the second point relied upon is untenable.

The first question remains. A train, operating only between two points within the State, and carrying merchandise only to destinations within the State, would clearly be subject to the regulatory provisions of the State act. Does the fact that it happens to carry one or more cars billed to a foreign destination rob it of its character as a factor in intrastate commerce?

There can be no doubt that, under such circumstances, the entire train is impressed with the qualities of a Federal agency of interstate commerce (Pedersen v. Railroad Co., 229 U. S. 146 [33 Sup. Ct. 648], and cases there cited) and as such is subject to the regulatory provisions of the Federal act. Can a train, , engaged in both interstate and intrastate commerce at ,the same time, be held to be controlled by both the Federal and State acts? A careful examination of the Federal authorities convinces us that it cannot. In St. Louis, etc., R. Co. v. Seale, 229 U. S. 156 (38 Sup. Ct. 651), it is said:

"If the Federal statute was applicable, the State statute was excluded by reason of the supremacy of the former under the National Constitution. Second, Employers’ Liability Cases, 223 U. S. 1, 53 (32 Sup. Ct. 169) ; Michigan Central R. Co. v. Vreelard, 227 U. S. 59, 67 (33 Sup. Ct. 192).”

We, are, therefore, bound to hold that plaintiff may recover only under the Federal statute.

His declaration, while it counts upon neither act specifically, was properly held by the learned trial judge to be based upon the liability fixed by the State act. This follows because of the fact that there is no averment in the declaration that, at the time of the accident, defendant was engaged in interstate commerce. At the time plaintiff commenced his action that fact could not have been known by him and could have been ascertained only with great difficulty and trouble, if at all.

Defendant was in possession of all the facts touching upon the matter and upon the trial promptly put them in evidence as a matter of defense. Should plaintiff be held to be debarred from recovery because of his failure to aver in his declaration a fact of which he was in ignorance, and which, in the nature of things, he could not ascertain?

We think it would be a reproach to thé administration of justice to so hold. It should be borne in mind that the declaration sets out facts which would impose a liability upon defendant under the Federal act, if it had charged that, at the time of the collision, defendant was engaged in interstate commerce. We are of opinion that it was not necessary for plaintiff to plead either statute, but that, upon the coming in of the proofs, it was the duty of the trial court to permit an amendment of the pleadings to conform thereto. It may be that, in case of the death of an injured employee, a different measure of damages is provided by the two acts. If so, the trial court will instruct the jury as to the proper rule under the applicable act. In this case plaintiff, having survived his injury, the measure of damages would, it appears, be the same under both acts. Our statute of amendments is extremely liberal. 3 Comp. Laws, §§ 10272, 10273 (5 How. Stat. [2d Ed.] §§ 12973, 12974).

Under its provisions it is the duty of the appellate court, as well as of the trial court, to make such amendments as justice requires, having due regard for the rights of parties. Following this course, we will treat plaintiff’s declaration as amended to aver that defendant was engaged in interstate commerce at the time he received his injury.

The rehearing is denied.

Steere, C. J., and Moore, McAlvay, Stone, and Ostrander, JJ., concurred. Kuhn and Bird, JJ., did not sit.


author: Per Curiam.

text:
    SONSMITH v. PERE MARQUETTE RAILROAD CO.
    Case by George Sonsmith against the Pere Marquette Railroad Company for personal injuries. On defendant’s motion for rehearing.
    (Calendar No. 24,601.)
    Motion denied May 28, 1913.

      Sonsmith v. Railroad Co., 173 Mich. 57 (168 N. W. 347).

      Bills, Streeter & Parker, for the motion.

      Purcell & Travers, contra.

   Per Curiam.

The motion for a rehearing is denied. One ground of the motion, namely, that in the opinion filed the question of the measure of the damages recoverable in. other cases under the statute was not considered, is answered by our opinion in Fernette v. Railroad Co., ante, 653 (141 N. W. 1084).


author: McAlvay, J.

text:
    QUICK v. DETROIT & MACKINAC RAILWAY CO.
    1. Constitutional Law — Master and Servant — Fellow-Servants — Statutes—Railroads.
    Act No. 104, Pub. Acts 1909, changing .the rules affecting fellow-servants, assumed risks and contributory negligence as to common carrier railroad companies, is constitutional; and it is as much within the power of the legislature to alter the common-law rules concerning the risks the servant assumes and his contributory negligence as to abolish the fellow-servant rule.

    2. Master and Servant — Assumed Risks — Fellow-Servants.
    It was the apparent intention of the legislature, in declaring the fellow-servant rule abrogated in actions against railroads, to modify the doctrine of assumed risk by eliminating the risk of negligence of fellow-servants, and also the risk of injury arising from violation of any statutory duty aud from defective cars, appliances, machinery, roadbed, etc.; it is not in harmony with the first section or with the purpose of the statute to hold that the injured servant assumes the risk of the negligence of a co-employee.
    Error to Iosco; Connine, J.
    Submitted June 20, 1911.
    (Docket No. 44.)
    Decided May 29, 1913.
    Case by Rudolph J. G. Quick against the Detroit & Mackinac Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry, Henry & Henry (James McNamara and Humphrey & Grant, of counsel), for appellant.

      De Vere Hall, for appellee.

       The authorities on the validity of a statute abrogating fellow-servant rule are collated in a note in 12 L. R. A. (N. S.) 1040.

   McAlvay, J.

Plaintiff, an employee of defendant, brought suit for damages against it for personal injuries sustained by him during such employment. The accident by which he was injured occurred September 7, 1909. On this date the defendant company was engaged with a construction train, consisting of an engine and some flat cars, in picking up steel rails alongside of the track, which had been taken up and replaced by heavier rails. This was a construction crew, divided into two sections of 14 men each, and was working on each side of the track. The rails were 30 feet in length and lay parallel with the track. They were loaded on the flat cars while the train moved slowly forward; the crew on each side being divided into 7 men at each end of the rail, who picked it up and, at a signal from the foreman in charge, who stood on the car, raised and put it on the car. On each side of these flat cars, about 8 feet from the ends, were 2 short stakes, about 10 inches above the car, set into pockets. In loading it was necessary for the men to raise the rail high enough to go over these stakes. While at this work a rail, at one end of which plaintiff and others were at work, was raised high enough to go over the stakes, but the other end, not being lifted or thrown high enough, struck the stake and fell back and threw the end which was already on the car back to the ground. In falling this rail struck the plaintiff upon his leg and broke it. Plaintiff was an experienced workman, having been'in the employ of the defendant company several times before this last time, and defendant contended that he was guilty of contributory negligence and had assumed the risk of his fellow-servants. The negligence charged in his declaration and relied upon by plaintiff was the negligence of fellow-servants. Plaintiff relies upon Act No. 104 of the Public Acts of 1909 to- entitle him to recover. The result of the trial was a verdict and judgment of $866.80 in favor of plaintiff. Defendant upon a writ of error has brought the case to this court for review.

At the time this case was reargued and finally submitted, this court had under consideration several cases involving the same questions. In the case of Sonsmith v. Railroad Co., 173 Mich. 57 (138 N. W. 347), decided November 8, 1912, the constitutionality of said act was passed upon and sustained, and its provisions were construed. Mr. Justice Osteandee, in the opinion handed down in that case, has cited and digested authorities, including the cases passed upon by the Supreme Court of the United States, where the Federal statute (from which this legislation had its source) has been before that court for construction. There is therefore no necessity to consider at length the questions determined in that case. Suffice it to say that all of them which are involved in the instant case were decided against the contention of appellant.

Appellant in the instant case contends: (1) That the act in question is unconstitutional; (2) that plaintiff was guilty of contributory negligence; (3) that he assumed all the ordinary and obvious risks of his employment, which included the negligence of his fellow-servants.

The first and second of these contentions are determined by the decision of this court in Sonsmith v. Railroad Co., supra.

There remains to be considered the contention that plaintiff assumed the risk of this injury, the negligence upon which he relies charged in the declaration being the negligence of the engineer in running the .train too fast, and the negligence of his fellow-servants in not properly lifting and loading the rail. It is urged in the instant case that the duties violated, upon which negligence is predicated, were common-law duties, the risk of the violation of which plaintiff assumed when he entered the employment. It is urged that Act No. 104, upon the question of assumed risk, is simply declaratory of the common law as it has always existed in this State, and that the statute, if held to be constitutional, simply modifies the doctrine of assumed risk in case of the violation of a statutory duty on the part of the common carrier railroad company.

The material portions of the act necessary to be considered, read as follows:

“The people of the State of Michigan enact:
“Section 1. Every common carrier railroad company in this State shall be liable to any of its employees, * ‘ * * for all damages which may result from the'negligence of any such railroad company or from the negligence of any of its officers, agents or employees. * * *
“Sec. 2. In all actions hereafter brought against any such common carrier railroad company under or by virtue of any of the provisions of this act to recover damages for personal injury to an employee, * * * the fact that the employee may have been guilty of contributory negligence shall not bar a recovery: Provided, that the negligence of such employee was of a lesser degree than the negligence of such company, its officers, agents or employees: Pro vided further, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier railroad company of any statute enacted for the safety of employees contributed to the injury of such employee, and such employee shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

It is contended that, unless taken away by this statute, the assumption of risk by plaintiff of the negligence of his fellow-servants constitutes a complete defense to this action, and, further, that this act was not passed as an act to provide for the safety of the employees of common carrier railroad companies, but, as its title indicates, it prescribes the liability of such companies to their employees, and that under this title no such provision could be included.

Before entering upon a discussion of these propositions, we desire to call attention to the opinion in Sonsmith v. Railroad Co., supra, which requires a careful and critical examination in order to understand the grounds upon which the court declared it constitutional and its application to the doctrine of contributory negligence. By reason of its bearing upon the construction of the statute relative to the question here involved, we quote briefly from that opinion, as follows:

"The act must be construed, if it is possible to do so, so as to give effect to the legislative intention. And this intention must be found in the act itself and in the conditions which it is assumed the legislature sought to remedy. Nothing in the act indicates a purpose to interfere with the exercise of the judicial power, as it existed when the Constitution was adopted, a purpose wholly beyond the legislative power. But the intention to modify — alter—certain rules of the common law, uniformly applied and enforced by the courts, is evident, and this the legislature undoubtedly may do.”

Earlier in the opinion, where the court referred to these rules of the common law, adopted under our Constitution, which this statute undertakes to modify, the court said:

“Two doctrines of the common law, adopted in this State, particularly applied in actions for personal injuries, are, First, that no recovery can be had for the results of another’s negligent conduct if the person injured, by his own negligence, contributed to his own injury; and, second, that one entering into an employment assumes the obvious and usual risks of the employment, among which is the risk that an injury may be received on account of the negligence of other employees engaged in the same general employment.”

It cannot be contended, under the provisions of our Constitution, that these rules of the common law may not be modified by the legislature. The enactment of this statute is an illustration of the exercise of such legislative power. It follows that if one of these common-law doctrines may be modified, as we have held in the Sonsmith Case, the legislature may exercise the same power over the other. This proposition must be accepted in construing this statute in the instant case upon the question of assumption of risk, and in giving its construction the court must follow the rule as laid down and quoted in the Sonsmith Case.

It is clear to us that the construction given by the court to section 1, which places liability upon a common carrier railroad company for injury to any of its employees for all damages which may result from the negligence of such company, its officers, agents, or employees, includes the negligence of all fellow-servants. To accept defendant’s construction of the statute upon the question of the risk assumed by plaintiff of the negligence of a fellow-servant would be entirely out of harmony with the construction of section 1 of the act already given. To hold the company liable for the negligence of its employees (fellow-servants of plaintiff), and allow at the same time the defense of assumed risk to be interposed to defeat such liability, would defeat the very object of the statute in attempting to adopt the rule of comparative negligence in this State. This statute must be construed, if possible, as a whole, and harmoniously. The conclusion is unavoidable that section 1, by its express terms, eliminates the doctrine of the assumption of the risk of the negligence of fellow-servants in these cases. Such construction does not create a provision looking toward the safety of employees, but one determining the liability of common carrier railroad companies to their employees. Nor in our opinion is such construction discredited by the provision of section 2 that:

“Such employee shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

This provision was simply declaratory of the law as already determined by this court in Sipes v. Starch Co., 137 Mich. 258 (100 N. W. 447), wherein it recognized the rule that parties may not contract to disregard a statutory duty. It is clear that the intention of the legislature was to modify the doctrine of the assumption of risk by eliminating the risk of the negligence of a fellow-servant, and also the risk of injury arising from a violation of a statutory duty, and also the risk arising—

“By reason of any defect or insufficiency due to the negligence of any such common carrier railroad company in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, coal docks or other equipment.”

Such modification is in harmony with the modification of the doctrine of contributory negligence already construed by this court, and in respect to the risk of injury from the negligence of a fellow-servant, absolutely essential to sustain such construction.

It is also contended that the charge of the court upon the question of assumed risk was misleading and confusing to the jury, and that under the charge the court should have submitted two special questions-bearing upon the risk assumed by plaintiff. It is a fact, as claimed, that the court did in terms charge at length upon the question of assumed risk as would be proper before the enactment of this statute, but later the court charged:

“In speaking of the risks which the plaintiff assumed, I do not want to be understood by you-as saying or charging that the plaintiff would assume any risk that was due to the negligence of his fellow-servants. That would be a risk that he would not assume.”

This undoubtedly was by inadvertence omitted when charging earlier upon this question, and taken together this charge was a proper and correct one. The court was not in error, either in its charge upon the question of assumed risk or in refusing to give the questions proposed. The learned trial judge correctly construed this statute, and the case was properly submitted to the jury.

The judgment of the circuit court is affirmed.

Steere, C. J., and Moore, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


text:
    KOLOSINSKI v. MODERN BROTHERHOOD OF AMERICA.
    1. Insurance — Mutual Benefit Policy — Waiver of By-Laws.
    Where' plaintiH and his wife applied for membership in defendant mutual benefit association, and at the time of initiation only plaintiH was initiated, although initiation was required by the by-laws of defendant, the wife being ill and unable to take part in the ceremony, and it also appeared that the local assistant secretary of the lodge issued a certificate of membership to both plaintiH and his wife, and afterwards received from the wife assessments, which defendant retained in ignorance of the fact that she had not qualified as a member, tendering them back after commencement of suit, upon learning the facts, waiver of the initiation provided for by defendant’s by-laws was not established.
    2. Same — Waiver—Conditions Precedent.
    Provisions of a benefit policy reciting that the assured waived all rights under the same until the application had been approved by the proper official and she had become a member and been duly initiated and had made the required payments and received the certificate while in sound health, were conditions precedent to any rights under the policy: undisputed evidence that insured never was in good health after the application and had never been initiated, defeated any right to recover on the certificate.
    3. Same.
    Defendant could not be held to have waived the requirements of the policy because it was delivered to plaintiH by the local assistant secretary who had no authority under the by-laws to waive any provisions thereof.
    Error to Wayne; Murphy, J.
    Submitted June 12, 1912.
    (Docket No. 88.)
    Decided May 29, 1913.
    Assumpsit by Julius Kolosinski against the Modern Brotherhood of America upon a benefit certificate issued to Mary Kolosinski. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial refused.

      Stephen D. Williams and John E. Foley, for appellant.

      McHugh, Gallagher & McGann, for appellee.
   McAlvay, J.

Plaintiff sues, as beneficiary, upon a membership certificate in the defendant fraternal organization issued to Mary, his wife, under date of November 11, 1909. Plaintiff and his wife made application for membership in Detroit Lodge No. 1128 on the same day, November 5,1909. They were examined by the lodge physician, Dr. McGeagh, on November 6, 1909. They were notified to be present at the lodge for initiation on the evening of November 12, 1909. Plaintiff presented himself and was duly initiated at that time, but Mary, his wife, did not present herself because of illness, and was never initiated. At the conclusion of the initiation exercises plaintiff asked for and received from the acting secretary the certificate of membership of his wife as well as his own. This certificate plaintiff took home and delivered to his wife, who retained it in her possession from November 12, 1909, until March 2, 1910, when she died.

Attached to the certificate of membership (policy) is the medical examination of the applicant. Question No. 44, “Are you now pregnant?” is shown to have been answered in the negative. Following this question and answer is the statement, “If pregnant a special pregnancy waiver must be signed.” No such waiver was signed by the applicant.

The application attached to the certificate contained the following warranties:

“I declare and warrant that I am, to the best of my knowledge and belief, in sound health and physical conditions, and that the above statements, together with the statements and answers made, or to be made, by me in other parts of this application are literally true.
“I further agree that any untrue statement or answer, or any concealment of facts, intentional or otherwise, in this application (including the succeeding parts hereof), or my failure to pay any fines, dues or assessments required by said Modern Brotherhood of America, and within the time therein provided, or my being suspended or expelled from said society shall forfeit the rights of myself and my beneficiary, or beneficiaries, to any and all benefits to be derived from my membership in said society. * * *
“I declare and warrant that each of the foregoing statements and answers is full, complete and literally true; and I hereby agree that the exact literal truth of each shall be a condition precedent to any binding contract, or benefit certificate, issued upon the faith of the foregoing answers. I further agree that the foregoing answers and statements, together with the preceding declarations in this application made, including the by-laws, rules and regulations of said Modern Brotherhood of America, now in force or hereafter enacted, together with its articles of incorporation, shall form the sole basis of contract between me and said Modern Brotherhood of America, and are offered by me as a consideration for the benefit certificate hereby applied for, and are hereby made a part of any benefit certificate that may be issued on this application, and shall be deemed and taken as a part of such benefit certificate.”

The by-laws of the defendant order were introduced in evidence. They contain the following provisions:

“Sec. 120. Initiation of Applicants. On receipt of the benefit certificate the secretary of the subordinate lodge shall notify the applicant, who shall be initiated, adopted and obligated by said subordinate lodge at a regular or special meeting, but under no circumstances shall said benefit certificate be delivered to said applicant until he has been initiated, adopted and obligated.
“SEC. 121. Lodge may Refuse to Initiate. At any time before the initiation of the applicant the subordinate lodge may, by majority vote, refuse to initiate, in which case the benefit certificate, with notice of the action taken by the lodge, shall be immediately returned to the supreme secretary.”
“Sec. 135. No Waiver of Any By-Laws. No officer of this society, either of the supreme or any subordinate lodge, shall have any power or authority, nor shall such officer be permitted, to waive any of the provisions of the by-laws of this society which relate to the contract between the member and the society, whether the same be now in force or hereafter enacted.”

The record discloses the fact that the insured woman was, at the time of her examination for admission to membership in the defendant order, pregnant, and liad been in that condition for some 6% months; that she was delivered of a child on December 21, 1909, about three or four weeks before full period, and that she died on March 2, 1910, having been ill and under the care of a physician practically all the time from November 7,1909. Defendant interposed with its plea a notice, by way of special defense, that it would show that she had falsely answered the question relative to h.er pregnancy.

It was not until the trial was on, and during the plaintiffs examination, that it was learned from him that his wife had never been initiated or obligated in the defendant society. As soon as the fact was learned, leave was asked and granted to amend the notice so as to raise that defense also. The records of the lodge, introduced in evidence, show that on the evening of November 12, 1909, 58 candidates were adopted. That plaintiffs wife was not among this number is admitted by plaintiff, and it is not asserted by him that she was ever initiated, adopted, and obligated as required by rule 120; indeed it is clear upon this record that she never was in such physical condition as 'would have enabled her to comply with the rule. Nevertheless, plaintiff asked the young woman acting as assistant secretary to deliver her certificate to him, and he paid on her account 80 cents, the requisite amount. Between November 12, 1909, and March 3, 1910, four monthly payments of 65 cents each were paid by plaintiff to the local lodge on account of his wife’s certificate, said payments being received and retained by the supreme lodge without any claim being made that the woman was not a member of the organization.

The question of fraudulent misrepresentation as to pregnancy may be passed, although the conceded condition of the insured, her failure to sign a pregnancy waiver, the testimony of the examining physician, and the fact that she examined the certificate containing the false statement and retained it in her possession for nearly four months, all tend to establish a fraudulent intent. Metropolitan Life Ins. Co. v. Freedman, 159 Mich. 114 (123 N. W. 547, 32 L. R. A. [N. S.] 298), and cases there cited.

The record shows that the defendant received the dues on account of the certificate of the insured in ignorance of the fact that she had never been obligated. D. M. Davis, the then local secretary of the local lodge, was absent in Chicago on the night of November 12th and his duties were performed by Miss O’Brien, his assistant. He testified:

“At that time I knew who were paying the assessments, whom they were paid for. I entered that assessment as being paid upon my books upon the account of Mary Kolosinski, and I found her account there upon my books, listed as a member. I didn’t know she hadn’t been a member until it was brought (out) by Mr. Smalley. I didn’t know until yesterday, when the defendant brought it out by Mr. Smalley.”

The receipt and retention of the dues by the grand lodge cannot be urged as a waiver, where such action was based upon the mistaken belief that the insured was a member; the dues being tendered back immediately upon discovery of the mistake.

A motion having been made by the defendant for a directed verdict, the court denied it, saying:

“The defendant’s motion for a directed verdict hinges upon the claim that no authority rested in the local lodge or local ministerial officer, the acting secretary, when she delivered the certificate to the plaintiff, so to do. The requirement for initiation is contended to be an essential condition precedent to membership, and the delivery of the certificate by the acting secretary was done without authority; she having no right to waive the provisions of the by-laws. I think these contentions are answered adversely to the defendant in the decision of Wagner v. Knights of Honor, 128 Mich. 660 [87 N. W. 903]; The motion is therefore denied. The questions of fact to be considered by the -jury, then, are whether the deceased did conceal and misrepresent her condition to the examining physician, and whether the certificate was fraudulently procured by the plaintiff. I think that disposes of the matter.”

We are of opinion that the motion should have been granted. A careful examination of the case of Wagner v. Knights of Honor, 128 Mich. 660 (87 N. W. 903), shows that it is not controlling of the case at bar. In that case, this court said, speaking of Mrs. Wagner, the insured:

“His wife also became a social member. Whether she became a beneficiary member is the chief subject of controversy.”

The record in that case shows, though the opinion does not, that the general laws of the defendant society provided:

“That in case of approval by the supreme medical examiner of persons who are ‘social’ members of the order, but not entitled to the benefits of the order, the application and certificate fee shall be forwarded to the supreme secretary immediately after receiving such notice of approval. Such members applying for the benefits of the order shall be subject to all the foregoing requirements, except that of initiation.”

This court said further:

“The main defense is one of fact, viz., that no certificate was ever issued.”

The certificate of membership in the Wagner Case contains no provision relative to initiation, while the certificate issued by defendant in the case at bar to Mrs. Kolosinski provides:

“I waive for myself and beneficiaries any and all rights to any benefit under this application, or any benefit certificate issued thereon, until this application shall have been approved by the supreme physician, and I shall have been regularly adopted and initiated in accordance with the ritual of said society, and have made the payments at the time of my adoption and initiation, as required by said by-laws, rules and regulations, and said benefit certificate shall have been issued in pursuance of this application and delivered to me, after adoption and initiation, and while in sound health and physical condition, and in accordance with the provisions of said by-laws, rules and regulations.
[Signed] “Mary Kolosinski,
“Person Examined.”

In view of this plain and unequivocal waiver on the part of the insured, and the undisputed fact that she was never initiated in the order, and never was (after the date of the application) in a condition of “sound health and physical condition,” so that she could have been initiated, we are of opinion that she never became a member of the defendant society, and that the membership certificate obtained by her through plaintiff never became a binding contract. As was said in Louden v. Modern Brotherhood of America, 107 Minn. 12 (119 N. W. 425) :

“The contract is that the applicant must be in good health at the time he completes the final act of membership. Then, and not till then, is he entitled to the certificate.”

See, also, Shartle v. Modern Brotherhood of America, 139 Mo. App. 433 (122 S. W. 1139) ; Matkin v. Knights of Honor, 82 Tex. 301 (18 S. W. 306, 27 Am. St. Rep. 886); Driscoll v. Modern Brotherhood of America, 77 Neb. 282 (109 N. W. 158); Bruner v. American Yeomen, 136 Iowa, 612 (111 N. W. 977); Supreme Lodge Knights & Ladies of Honor v. Johnson, 81 Ark. 512 (99 S. W. 834).

The claim of plaintiff that Miss O’Brien, the assistant secretary of the local lodge, could and did waive the by-law requiring initiation, by delivering Mrs. Kolosinski’s policy to plaintiff, is not tenable. Defendant’s by-law No. 135, above quoted, denies such authority, and this court has held that such an officer does not possess the power to waive the by-laws. Larkin v. Modern Woodmen of America, 163 Mich. 670 (127 N. W. 786), and cases there cited.

Reversed, and no new trial ordered.

Steere, C. J., and Moore, Brooke, Stone, Ostrander,- and Bird, JJ., concurred.