author: Moore, J. Moore, J.

text:
    MEHEGAN v. BOYNE CITY, GAYLORD & ALPENA RAILROAD CO.
    1. Carriers — Contract Against Negligence — Railroads — License.
    The contract of a railroad corporation giving to employees of another corporation license to operate a motor car on the railroad right of way, under certain restrictions, and providing that the railroad should not he liable for negligence of its employees resulting in injury to persons so operating the motor car, is valid, because the contract was not made in the capacity of a carrier.
    2. Executors and Administrators — Death—Lord Campbell’s Act — Release—Satisfaction—Effect on Action by Personal Representatives — Estates of Decedents.
    Under the death act, 3 Comp. Laws, §10427 (5 How. Stat. [2d Ed.] § 13702), the personal representatives of a decedent are barred from recovering for injuries resulting in immediate death of a decedent, who, with his wife, the plaintiff, had executed a release of liability to the defendant for any injury that he might sustain while riding upon a motor car of his employer, operated over defendant’s rails.
    Error to Otsego; Sharpe, J.
    Submitted January 31, 1912.
    (Docket No. 119.)
    Decided May 28, 1913.
    Reargued June 4, 1914.
    Opinion réaffirmed July 24, 1914.
    Case by Lillian S. Mehegan as administratrix of the estate of James E. Mehegan, deceased, against the Boyne City, Gaylord & Alpena Railroad Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Harris & Ruegsegger (Harrison Geer and H. R. Martin, of counsel), for appellant.

      DeVere Hall (George E. Nichols and H. A. Jersey, of counsel), for appellee.
   Moore, J.

The defendant is a railroad corporation organized under the laws of Michigan. It owns and operates a railroad which extends from Boyne City to Gaylord, and has branches and spurs running from its main line. Among other things, it transports timber products from the forests along its line of road to the mills and factories in Boyne City, and is what is generally called a logging railroad.

The Boyne City Chemical Company manufactures charcoal, wood alcohol, and by-products, and chars large quantities of wood each day, a large part of which is hauled over defendant’s road from the forests along its line.

In July, 1905, the said Boyne City Chemical Company became the owner of a motor car which was propelled by gasoline. The chemical company desired to use it upon the tracks of the defendant for the convenience of its men in going from its plant at Boyne City out along the line of the railroad for the purpose of measuring wood and performing other duties. The chemical company and the defendant railroad company thereupon entered into an agreement which bears date July 6, 1905. Under this agreement permits were issued to one William Spratt and the deceased, James Mehegan, to ride upon this motor car, which is designated in the agreement as “Number 99.”

Mehegan and Spratt, before being permitted to ride upon the motor car upon the tracks of the defendant, were required, under the terms of the contract, to execute to the defendant a release; the plaintiff in this case joining with her husband in the execution of the same, and Mrs. Spratt, the wife of William Spratt, joining with him in the execution of said release. Later, and about August, 1908, one Ralph Bearss also became a scaler for the Boyne City Chemical Company. He executed a like release, and was granted a permit to ride upon and assist in operating the said motor car upon the tracks of the defendant company. Under the terms of the. agreement and after delivery of the release the deceased and Spratt, and later Bearss, continued from time to time to operate the motor car upon the tracks of the defendant company. In all train orders and train sheets, said car was known as “No. 99.” Spratt, Bearss, and the deceased were men familiar with the railroad rules.

At a point east of the west line of Park street, which is the east line of the passenger depot in Boyne City, a house had been constructed for the housing .of this motor car. It was situated about 20 feet north of the north rail of the main line of defendant’s track, and stands partly upon a lot owned by the deceased, Mehegan, and from it extends a siding, which connects with the main line a few feet west of the west line of Boyne avenue, the distance from the motor car house to where the siding strikes the main line being approximately 195 feet. East of Boyne avenue, on the north side of the track, and 1,041 feet east of the motor car house, and 1,801 feet east of the depot, between the railroad tracks and the cooperage plant, are the steam vats of the cooperage plant, and east of the vats 739 feet is the telephone box on the south side of the railroad track, above mentioned. East of this telephone box a short distance is the side track connected with the main track, known as Mill No. 3 siding, sometimes called the Elm Cooperage siding, above mentioned. The steam vats are 65 feet long and lie almost parallel with the railroad track. In certain kinds of weather, with the wind in the north, northwest, or northeast, the steam from the vats along the track will at times settle down over the track so that it will obscure for perhaps 100 feet at times.

Many passenger and other trains arrive at and leave the station at Boyne City daily, going east and returning. Among others on February 19, 1909, was a regular passenger train scheduled to leave Boyne City at 9:05 in the morning. That morning car No. 99 was in the motor car house east of the depot, and Mr. Bearss, Mr. Spratt, and plaintiffs decedent went to the motor car house for the purpose of taking the car to make a trip eastward on the tracks of the defendant. An order was obtained from the train dispatcher.

Previous to 9:05 a. m. on the morning of the 19th of February, a switch engine was working in the yard, and when the morning passenger train left the depot at 9:07 and when it passed the cooperage switch, this engine was standing on the siding just off the main line. Immediately after the passenger train passed, the conductor opened the switch on the main line, the engine ran out, the switch was closed, and the engine proceeded west on the main line toward the depot. The conductor did not call up the dispatcher and get permission to go out onto the main line before the engine ran out of the siding onto the main line. At this time the steam from the vats enveloped the track. No. 99, which left the motor siding switch on the main line at 9:10, was going east, following the passenger train. The steam obscured the view of the men on No. 99 of the track ahead of them, and it also obscured the view of the men on the switch engine of the track ahead of them, and No. 99 and the switch engine collided just as the switch engine emerged from the steam. Plaintiff’s decedent was driving the motor car. He and Mr. Spratt occupied the front seats. Bearss, who was acting as switchman, and who had opened ‘the switch for the car to pass out, and had closed it after the car passed out upon the main track, was standing up in the car in the rear of Mehegan and Spratt buttoning his coat. Spratt and Mehegan were both killed by the collision.

Plaintiff claims that, the defendant was negligent, and that its negligence resulted in the death of her decedent; that having established a telephone at the cooperage or mill 3 switch, and having issued a bulletin that the crews of engines working on that siding should call the dispatcher’s office and receive orders to come out upon the main line over the switch to run to the depot before running upon the main line, it was negligence for the switching crew on this morning not to obtain such an order before coming out upon the main line, and that this negligence caused the death of plaintiff’s decedent, and that the defendant is liable therefor.

The defendant contends that this collision occurred within its yard limit, and that plaintiff’s decedent, who was operating the motor car, was operating it without regard to various rules of the company. The defendant further contends that even though its crew were negligent, and there was no negligence upon the part of the deceased and the others of the crew of the motor car No. 99, the plaintiff’s decedent assumed the risk of operation of said motor car upon the defendant’s tracks, whether the negligence which caused the accident was that of the defendant or themselves, under the contract between the chemical company and the defendant and the release executed by the plaintiff, Mrs. Mehegan, and her decedent.

At the close of the plaintiff’s proofs, the defendant moved for a directed verdict in its favor. The trial judge overruled the motion. The defendant did not introduce any evidence and the case was submitted to the jury. It rendered a verdict in favor of the plaintiff for $12,000. The defendant made a motion for a new trial, which was overruled by the circuit judge. The case is here by writ of error.

The defendant discusses the following propositions:

1. The place where the accident occurred was within the defendant’s yard limits; and rules 91 and 93 were not in any way modified or superseded by the bulletin claimed to have been issued relative to switching crews obtaining orders over the telephone before coming out of the cooperage or mill 3 siding onto the main track. '
2. Plaintiff’s decedent and his associates were guilty of contributory negligence.
3. The contract between the Boyne City Chemical Company and the defendant, the Boyne City, Gaylord & Alpena Railroad Company, was valid, and the release executed by the plaintiff’s decedent, James E. Mehegan, and the plaintiff herself, who was his wife, is likewise valid, and this contract and this release preclude recovery in this suit.
4. The circuit judge should have granted the defendant’s motion for á new trial.

In our view of the case it will be necessary to discuss only the third of the above propositions. The material parts of the contract to which reference has been made read as follows:

“Permit Granting Privilege by Boyne City, Gaylord & Alpena Railroad Company to the Boyne City Chemical Company to Operate a Motor Car upon Tracks of the Railroad Company.
“Whereas, the said Boyne City Chemical Company own a motor car, an<j in connection with its business it is necessary that its employees visit at different points upon and along the right of way of the said railroad company; therefore:
“The said railroad company hereby grant a permit to the said chemical company for itself and certain of its employees to use said car upon the tracks of the company, subject always to the conditions and regulations hereinafter set forth as follows:
“1. This permit shall be for employees of the Boyne City Chemical Company upon business only.
“2. The Boyne City Chemical Company shall furnish to the railroad company a list of its employees to be permitted by them to operate and ride upon this car.
“3. Such employees shall give to the railroad company a full release for all damages to themselves, their heirs and personal representatives which they shall suffer by reason of the operation of this car, whether the same be caused by the negligence of the railroad company or its employees, or by their own negligence or the negligence of the chemical company.
“4. The chemical company shall release the railroad company from all claim of damage to said motor car caused by its operation or storage upon any of the railroad company’s tracks and grounds, whether caused by the negligence of the railroad company’s employees or otherwise.
“5. The chemical company shall execute a good and sufficient bond to the railroad company in the penalty of ten thousand dollars conditioned to reimburse the railroad' company for all damages it may suffer arising to its property, its employees, to third persons and their property through the storage and operation of such motor car upon the tracks and grounds of the said railroad company.
“6. Said motor car shall have painted in large distinct figures upon front and rear of car, ‘No. 99,’ and shall be known and designated as ‘No. 99’ in all communications and train orders.
% * * * ❖ *
“8. Owing to the weight and bulk of, said motor car it will be necessary to authorize its movements over the tracks of the railroad company by train orders in the same manner as extra railroad trains are now being operated by said railroad company; therefore it shall be the duty of the chemical company employees who are authorized to operate said motor car to first obtain and use a copy of the current time tables and rules governing the operation of the railroad company’s trains.
$ * * * ❖ ❖
“10. The rules and regulations governing the operation of the engines and trains of the railroad company shall apply, and the chemical company and its employees shall be bound by them in the same manner and to the same extent as the employees of the railroad company are thereby controlled and bound.
“11. The chemical company and its said employees before, starting upon any trip with said, motor car shall first obtain a train order for such trip from the train dispatcher of the railroad company then on duty, and shall conform to all laws and ordinances of the State and municipalities relating to the operation of railroad trains as to speed, etc.
“12. The railroad company reserves the right to cancel this permit and to terminate the operation of said car upon its tracks without notice.
“Dated this 1st day of July, A. D. 1905.
“Boyne City Chemical Company, through its president and treasurer, hereby accepts the above permit, and agrees that said chemical company shall be bound thereby.
“Dated this 6th day of July, A. D. 1905.”
The release heretofore referred to reads as follows:
“Boyne City, Mich., July 15, 1905.
“In consideration of my being permitted to ride upon the motor car of the Boyne City Chemical Company upon the tracks of the Boyne City, Gaylord & Alpena Railroad Company, I hereby stipulate with the Boyne City, Gaylord & Alpena Railroad Company that I am in the employ of the Boyne City Chemical Company, and that I hereby release the said Boyne City, Gaylord & Alpena Railroad Company from any and all liability for any damage or injury which I may receive while riding upon or operating the said motor car of the Boyne City Chemical Company upon the tracks of the said railroad company, both as to any right of action that may accrue to myself, my heirs and personal representatives.
“I further stipulate and agree while operating or riding upon said motor car to be bound by all orders, rules and regulations of the said railroad company.
“W. T. Spratt.
“Mrs. Wm. Spratt.
“James E. Mehegan.
“Mrs. James E. Mehegan.
“In presence of
“Gladys Spratt.
“Mrs. Wm. Dow.”

It is the claim of plaintiff that the defendant had no right under the powers conferred upon it to enter into such a contract as was made here. No case is cited by counsel upon either side that is upon all fours, but there is a line of cases which establishes a principle which we think is applicable here.

Before calling attention to these cases a further statement of the situation disclosed by the record will be profitable.

The Boyne City Chemical Company carried on a manufacturing business at Boyne City. It uses large quantities of wood in its manufacturing business, about 5,000 cords a month which is shipped to its plant at Boyne City over the defendant’s road. In connection with the cutting and shipping of this wood, it is necessary for certain employees to visit different points along the defendant’s line of road for the purpose of buying wood, and measuring the wood, superintending the loading of it on cars, and looking after it in general in the woods. The employees who did this work at the time of the accident lived at Boyne City. Before the contract was made in July, 1905, these employees used to drive teams to and from their work. Frequently when they drove it took until nearly noon for them to get to their work, and sometimes they were away at camp two or three days at a time, and, in order that they might be at home more, it was decided to use the motor car. With it they were enabled to go to their work in the morning and get back at night, except when they went to Gaylord.

It will be seen that it was an advantage to all the parties to bring about the result which was attempted to be reached by the use of the motor car. The men were able to spend more time with their families at home. Less time was spent upon the road so that more effective work was done for the chemical company at the same wage, and more freight for the railway company would also result by the expenditure by the men of the same amount of time.

The record discloses that the use of their motor car by the chemical company, through its employees, upon the tracks of the defendant railroad company did not interfere with the performance by the defendant of its corporate duties to the public. It did not lessen the number of trains or materially interfere with the freight or passenger traffic except possibly to increase the former, while at the same time the officers of the defendant road did not relinquish the right to control the movements of the motor car.

In Coup v. Railway Co., 56 Mich. 111 (22 N. W. 215, 56 Am. Rep. 374), which was a suit for damages on account of injuries to a circus which had been carried under a special contract, it was held that the railway company was not a common carrier of circuses, and, therefore, that the contract- which exempted it from liability was valid. Justice Campbell, speaking for the court, said:

“Unless this undertaking was one entered into by the defendant as a common carrier, there is very little room for controversy. The price was shown to be only 10 per cent, of the rates charged for carriage, and the whole arrangement was peculiar., If it was not a contract of common carriage, we need not consider how far in that character contracts of exemption from liability may extend. In our view it was in no sense a common carrier’s contract, if it involved any principle of the law of carriers at all.
“The business of common carriage, while it prevents any right to refuse the carriage of property such as is generally carried, implies, especially on railroads, that the business will be done on trains made up by the carrier and running on their own time. * * *
“It cannot be claimed on any legal principle that plaintiff could, as a matter of right, call upon defendant to move his trains under such circumstances and on such conditions, and if he could not, then he could only do so on such terms as defendant saw fit to accept. It was perfectly legal and proper, for the greatly reduced price, and with the risks and trouble arising out of moving peculiar cars and peculiar contents, on special excursions and stoppages, to stipulate for exemption from responsibility for consequences which might follow from carelessness of their servants while in this special employment.”

In Clough v. Railway Co., 155 Fed. 81, 85 C. C. A. 1 (11 L. R. A. [N. S.] 446), it was said:

“That the railway company was under no common-law obligation to move the circus company over its line in the manner it was being transported at the time of the injury to the plaintiff in error must be conceded. If the railway company was under no statutory or common-law obligation to render the special service it was called upon to render there were no reasons of public policy which forbade the rendition of such service upon such terms as the parties might stipulate. The right to make special stipulation under such conditions has been recognized and applied in a number of cases substantially like the case at bar when circus trains were hauled under special agreements relieving the company from carrier’s liability.”

See same case in 212 U. S. 579 (29 Sup. Ct 688), also Forepaugh v. Railroad Co., 128 Pa. 217 (18 Atl. 503, 5 L. R. A. 508, 15 Am. St. Rep. 672); Robertson v. Railroad Co., 156 Mass. 525 (31 N. E. 650, 32 Am. St. Rep. 482); Chicago, etc., R. Co. v. Wallace, 66 Fed. 506, 14 C. C. A. 257 (30 L. R. A. 161); Wilson v. Railroad Co. (C. C.), 129 Fed. 774; and 1 Elliott on Railroads, § 451; Cleveland, etc., R. Co. v. Henry, 170 Ind. 94 (83 N. E. 710) — which indicate that special contracts exempting railroad companies from liability are valid.

There are many other cases cited to the same effect in the briefs of counsel for defendants.

■ It is said by counsel for plaintiff that the contract and release cannot take away the rights of Mrs. Mehegan and her child. In one of the briefs it is said:

“These sections (referring to the statute) give Mrs. Mehegan and the infant a right of action not possessed by decedent in his lifetime, but one arising from his death. As applied here, the right is one in no manner accruing to decedent as it did not begin until his life terminated. He could not release that which he never possessed.”

In the other brief it is stated this way.

“It also may be conceded under the circumstances of this case, had deceased been injured, he could not have recovered from the railroad company. Having released the company from all liability for injuries that might befall him through its negligence, he could not be allowed to recover from it in the face of this release. The proposition is not admitted and the concession is only made for the purpose of the argument.
“The ‘death act,’ C. L. § 10427 (5 How. Stat. [2d Ed.] §13702), provides that there can be recovery under the statute only when the party injured would have been entitled to recover, if death had not ensued. It might seem, upon first thought, that since Mehegan could not have recovered had he been injured, then of course there can be no recovery under the statute for his death, but this is not the logical conclusion when the statute appears in the full light of its true construction.
“The true construction of this statute must be that it was intended that the liability of the person or corporation causing the death of a deceased should be determined by the' same state of facts and the same degree of evidence that would determine liability toward the deceased for any injuries he might have sustained. If the company, under the facts, was liable to the injured had he lived, then, under the same state of facts it was liable to his wife and children for his death. In other words, the statute, it seems to me, was intended to bar a recovery only when the state of facts applicable to the primary right of action was such as to bar recovery, and did not intend that the right the statute gave to a wife and her children, expressly and purposely for their maintenance, their pecuniary damage, should be defeated by any affirmative defense such as a release, or waiver, or compromise. To follow such a construction would be to take from the wife and children the cloak thrown around them for their protection and place it upon the shoulders of the husband and father, to barter it away as he thought fit.
“The right given under the statute in no way inures to the benefit of the deceased; it is not even in existence, only as an inchoate right in the wife and children, until after his death; damages recovered under the statute belong not to his estate, but to those pecuniarily dependent upon him; he can have no pecuniary interest growing out of his own death; i under no version of the statute has he even the remotest interest in any damages recovered for his death, and having no such interest, it follows that he cannot, by any manner of contract, defeat a recovery under the statute.”

In view of these contentions so ingeniously and ably urged it is important to refer to the statute. It reads as follows:

“(10427.) Section 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
“(10428.) Sec. 2. Every such action shall be brought by, and in the names of, the- personal representatives of such deceased person, and the amount recovered in every such action, shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered.” (5 How. Stat. [2d Ed.] §§ 13702, 13703).

These provisions of the statute have been before this court several times. Sweetland v. Railway Co., 117 Mich. 329 (75 N. W. 1066, 43 L. R. A. 568); Dol son v. Railway Co., 128 Mich. 444 (87 N. W. 629); Ingersoll v. Railway Co., 163 Mich. 268 (128 N. W. 227, 32 L. R. A. [N. S.] 362); Verlinde v. Railroad Co., 165 Mich. 371 (130 N. W. 317); Habitz v. Railroad Co., 170 Mich. 71 (135 N. W. 827). A reference to the opinions filed in those cases will show a great diversity of views on the part of the justices as to the construction the statute should have. It is however now established as the law in this State that the statute does not provide for two separate and distinct causes of action.

The following cases are instructive:

In Brown v. Railway Co., 101 Tenn. 252 (47 N. W. 415, 70 Am. St. Rep. 666), it was held that an adjustment by deceased, in his lifetime, of his claim for damages for personal injuries barred an action by his widow to recover -for his death resulting from such injury.

In Southern Bell Telephone, etc., Co. v. Cassin, 111 Ga. 575 (36 S. E. 881, 50 L. R. A. 694), the plaintiff’s decedent had been injured through negligence of the telephone and telegraph company, and had instituted suit, and while the suit was pending had settled with the company and executed a release of his claim. Later he died, and his widow brought suit against the company, under the death act of Georgia, claiming that the release executed by him was not binding upon her. Held, that she was bound by the release, and that she could not maintain the suit. The court was composed of six judges, and two of them dissented from the majority opinion. The majority opinion contains a very exhaustive discussion of the authorities on the question. In the course of the majority opinion it is said:

“But it is said that no decision that a release by the husband bars a subsequent suit by or for the wife is of any value in this case, unless it was rendered by a court which holds that the survival and death acts create new and distinct causes of action. This, therefore, must be borne in mind in estimating the weight of the authorities cited. In reading them, with this prominently in view, it is remarkable to note the various expressions used, in the effort to define the relation which the action by or for the widow bears to the action in favor of the injured husband. Some, in fact all of the courts, may be said to- call it a new cause of action, as in Western, etc., R. Co. v. Bass, 104 Ga. 390 [30 S. E. 874], Some call it a ‘new, but not an independent cause of action.’ Cooley on Torts, 264, speaks of it as an ‘enlargement’ or ‘continuation.’ * * * Others say ‘the cause of action for the homicide is “contingent” on the death of the injured party without having satisfied his claim for damages.’ But notwithstanding this variety of expressions, there is substantial unity in holding that a release by the husband bars the wife; this view being taken even by those courts which insist most strongly that the two acts create two causes of action, and by courts also which rule that concurrent suits may be maintained. However new it may be, in the very nature of things it cannot be independent; it is inherently rooted and grounded in the injury to the husband. It grows out of it, and is a part of it, having almost complete identity of substance, and subject to the same defenses. More than a dozen courts have directly passed upon the effect of a release by the husband, and all except those of Massachusetts and Kentucky have held that it bars a suit after his death.”

After discussing the cases which it was claimed supported the right of the widow to maintain the action, the court, in majority opinion, said:

“We think the cases above cited are the very strongest which can be found in favor of the position taken by the defendant in error. It will be seen that they are based either upon penal statutes or upon decisions which have been overruled, or that they are discussing the effect of concurrent remedies after the death of the injured party, or that the decisions themselves have been weakened by conflicting decisions in the same jurisdictions.”

It was further said in the majority opinion:

“If the wife is in privity with her husband, it is conceded that his settlement will bind her; but if there is no privity between them as to this class of cases, then if the husband should sue and fail to recover, the wife, after his death, would not be bound by that judgment; she may bring suit.and obtain a verdict, notwithstanding the husband failed in his suit. So that not only is a settlement no bar, but neither is a verdict against the husband a bar. This would not only make the statutes penal, but it would not allow the defendant to buy his peace by paying money, nor could he secure peace by making a successful defense immediately after the injury, when the recollection of the witnesses is fresh, when they are all accessible, and when the circumstances of the injury can be most certainly and truthfully portrayed.” * * *
_ “The settlement also operates as a bar upon considerations of public policy, interposing a statute of repose; for, if the settlement is not a bar, there is practically no statute of limitations, and oftentimes no person with whom the defendant can settle, and even after a settlement, marriage, birth of after-born children, death of the wife, minority of the children, and the possibility that the children themselves may die during the lifetime of the injured party, all make the defendant liable to an uncertain extent, as of an uncertain date, to unknown and unknowable persons. In the nature of things, one who claims as a wife is bound by the husband’s conduct. His freedom from fault inures to her benefit, but his negligence is imputed to her, when, as a quasi-substituted plaintiff, she asks the court to investigate the circumstances of his killing. If his negligence in the act is imputed to her, should not also his conduct after the injury be imputed to her? In spite of all the recent statutes 'the husband is still the head of the family,’ his life is his own, his body is his own, and whatever right in that life the law gives to his wife must be subject to the superior right of the husband. While the law gives her the full value of that life, she takes it as he left it. If it was a valuable life, in a pecuniary sense, —if his health, his strength, his habits, were such as to give it a great earning capacity, then great is her recovery. But if, on the contrary, he had so lived as to lessen these elements of pecuniary value, if by idleness and vice and dissipation he had s'horn himself of his strength, the wife’s right therein must be taken burdened by what he has done in his lifetime. While he lives, his life and his person belong to himself, and he must use that life and body for the support of his family. He must be left free, when injured, to settle for the wrongs which were done to .him, and to him alone; he must be at liberty to adjust that wrong without the amount of his settlement being diminished by the possibility, or probability, that the person dealing with him will have to pay a second time for the same act. The family stand to him in the relation of heirs, and, like all heirs, have no rights which can interfere with those of the living. They take what he leaves; they take under him and subject to him, and not adversely to him. Under this statute, the cause of action primarily grows out of the relation between the husband and the wrongdoer and his rights against the wrongdoer. The full value of action is in him; only secondarily is it in the wife, and it comes to her, if it comes at all, burdened and incumbered by his conduct, his settlement, and whatever else he did in his lifetime in reference thereto. It is true she may recover the full value of his life, but that value depends on what he was, and what he did in his lifetime, and if before his death he has settled with the defendant, he has, by his own act, transmuted the value of a cause of action into dollars and cents, and deprived his family of any further value growing out of the negligence complained of. * * * The contention of the defendants in error
means that if a settlement takes place, the defendant may be called upon to pay a second time in case of death. It means double damages. It means the statute is to be treated as penal and not compensatory. It means that we are to lay at the door of our statute the reproach which was so often and so justly uttered against the statutes of some of the other States, as to which it was said that it was actually ‘cheaper to kill than to hurt.’ With us, hereafter, it would mean the same thing, because for the death of the husband there would only be one recovery. For his injury and subsequent death there could be two recoveries. We have seen that statutes identical with ours in substance, having the same object in view, and intended to give the same rights, have all, or very nearly all, been construed to mean that where the husband was injured and subsequently settled for the injury, and thereafter died from the effect of the injury, there could be no recovery by his wife for his death. She stands in his shoes. She recovers if he could have recovered. She fails if, for any reason, he would have failed. If he consented to the injury she cannot recover. If he ratifies the injury by accepting compensation, she cannot recover. If by ordinary care he could have avoided the injury, she cannot recover. If he obtains judgment against the defendant, she cannot recover. What would have estopped him estops her. Not only would it be a hardship to require a defendant to pay double damages, but there are considerations of public policy which cry out against such a construction — a public policy so pronounced that it would require every reasonable doubt to be resolved in its favor. If the defendant is to pay the injured man full damages, and subsequently is to pay the full value of his life, it becomes manifest that settlements are impossible. It would operate to deprive the injured party ‘of the power of settling his claim, or realizing anything from it in his lifetime. It would naturally, if not inevitably, prevent settlements, and procrastinate litigation, until it could be determined whether death would ensue from the injury. There could be little inducement to settle without suit, because whatever might be paid to the injured party would neither bar nor diminish the claims of his representative, should death ensue. The statutes should not be strained to bring about such a result, nor should it be reached unless required by the plain language of the enactment.’ Littlewood v. Mayor, 89 N. Y. 24 (42 Am. Rep. 276, 277). Under such a construction the law, by its own act, would encourage litigation, in spite of the maxim that ‘it is to the interest of the commonwealth that there should be an end of litigation.’ It would make it impossible to obey the injunction, ‘Agree with thine adversary quickly while thou art in the way with him;’ for the defendant can properly ask, ‘Who is mine adversary?’ He might be willing to settle, he may have agreed on terms, and yet he would be compelled to say to a husband and father, ‘It is impossible to say whether you will die as a result of these injuries or not, or whether, when you die, your wife and your children will then be living or not, or whether you will be wifeless and. childless. She may consent to the settlement, but she may also die, and you may marry again. Or, the wife may die and leave you children. It is impossible to settle with them, because they are minors, and even if that were legally possible, there may be after-born children, and all of these uncertainties must be considered in our negotiations.’ Surely the law does not intend that any case shall be so inchoate that the person liable does not know to whom he may be ultimately liable, and cannot adjust and settle, even when he admits liability and is willing to pay.”

There are many other authorities cited in the brief of appellant to the same effect.

It is urged by counsel for plaintiff that Ingersoll v. Railway Co., 163 Mich. 268 (128 N. W. 227, 32 L. R. A. [N. S.] 362), sustains their contention. A reference to the case will show that the effect of a release by the husband either before or after a cause of action would have otherwise arisen was not involved.

The language of the statute suggests very clearly that if the husband would not have a cause of action had he survived the injuries his widow and child would not have one. It is clear from the record that the chemical company, the defendant company, and the employees of the chemical company recognized that defendant company could not be compelled to permit the use of this motor car upon its tracks. It is also clear they thought it would be to their mutual advantage to permit its use. The defendant company was willing to enter into the arrangement if it could do so freed from all liability. To bring about the use of the motor the chemical company and the employees were willing to free the defendant company of liability. A reading of the contract and release shows that the parties thought they were accomplishing this result. We can see nothing illegal or contrary to public policy in what the parties undertook to do.

The judgment is reversed. No new trial will be granted.

Steere, Brooke, and Stone, JJ., concurred.

ON REHEARING.

Moore, J.

This case was originally heard in this court before five justices. One of them, Justice Blair, died. An opinion was handed down signed by the other four justices. It is found ante, 694 (141 N. W. 905). The case, upon the application of the plaintiff, was reheard, all of the justices sitting. We think the result reached in the opinion which was handed down is right, and deem it unnecessary to write a further opinion.

The judgment of the court below is reversed. No new trial will be granted.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    CHARTERS v. INDUSTRIAL WORKS.
    1. Master and Servant — Railroads—Contributory Negligence.
    It was negligence that would preclude plaintiff from recovering for injuries sustained in his employment as defendant’s freight conductor, to pass between an approaching car and a pile of iron, of the existence and location of which he was aware, in the dark, after his lantern had been blown out, and without stopping to relight it; several other safe ways of doing the work he was performing being available.
    2. Same — Adopting More Dangerous Way — Negligence.
    A servant is guilty of negligence for selecting the more dangerous of two methods of discharging his duty, one of which is comparatively safe.
    3. Same — Proximate Cause — Intervening Cause.
    Where plaintiff voluntarily walked up a railroad track, in the dark, towards an approaching car, without stopping to light his lantern which had gone out, the extinguishment of the lantern was not the proximate cause of his injury.
    4. Pleading — Joinder of Causes — Declaration.
    On distinct and independent torts of a similar nature, plaintiff may declare jointly, but if both counts are submitted to the jury, one, erroneously, a mistrial results, which will require the court on error to reverse the judgment.
    5. Master and Servant — Contributory Negligence — Fellow-Servants — Incompetency.
    Evidence considered and held, to present issues of fact relative to the incompetency of plaintiff’s fellow-servant, contributory negligence, and the knowledge by plaintiff of such alleged incompetency; evidence that plaintiff rode on the crane which caused his injury, to expedite his work, that it was' customary to so ride, and that his superior servant had directed him to do so, tended to support his claim that he exercised due care.
    Error to Bay; Collins, J.
    Submitted November 24, 1913.
    (Docket No. 116.)
    Decided March 26, 1914.
    Case by Judson S. Charters against the Industrial Works, a corporation, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Gillett & Clark, for appellant.

      Hall, De Foe & Hall, for appellee.
   Stone, J.

This is a personal injury case involving two separate and distinct injuries. The alleged injuries occurred more than a year apart, and had no connection with each other, so that the case presents practically two cases in one. The negligence charged relating to the first injury was the furnishing of an improper lantern to the plaintiff by the defendant; while the negligence charged relating to the second injury was the employment and retention of an incompetent, careless, and reckless fellow-servant, to wit, an engineer.

The first injury is alleged to have occurred on, to wit, November 11, 1909, and the second on, to wit, May 31, 1911, at Bay City, in the yards of the defendant’s factory, where were manufactured railroad cranes, railroad equipment, and other heavy machinery, and where were maintained switching tracks, traveling cranes propelled by steam power, and used as locomotives to move freight cars about the yards, and as derricks for lifting and moving heavy objects as necessity required; that switching operations were carried on in such yards in the nighttime by a crew of men employed for such night shift or work,'who were provided with lanterns to enable them to perform such work.

The undisputed evidence shows that plaintiff commenced working for the defendant on or about September 7, 1909. He went to work first as a member of the yard gang, containing 35 or 40 men, who worked outdoors in the yard connecting the various buildings. A part of the equipment of the yard gang consisted of two locomotive cranes, called, respectively, “Big Sandy” and the “Joe.” In the fall of 1909 these two cranes were working on the night shift. Each of these cranes had a crew of three men, consisting of the conductor, engineer, and brakeman. The engineer stayed in the cab of the machine; the conductor stayed on the ground, and had charge of the operations of the crane, giving orders to the engineer and brakeman; while the brakeman also stayed on the ground, and acted as a helper to the conductor. In addition to the lifting work, the cranes took the place of yard engines in moving cars about the yards.

Referring to the first alleged injury, it may be stated that after a short preliminary service on the day crew plaintiff commenced working on the night crew in the fall of 1909, and was given the position of conductor on the “Big Sandy.” His brother, Fred Charters, was brakeman, and the engineer was one William Redmond. It was part of plaintiff’s duty, as conductor, to take charge of the operations in the yard on the night shift. In order to furnish light for the night work, the defendant had installed an elaborate lighting system, consisting of a power house, steam engine, and generator, and a system of arc lights situated at different points in the yard. In addition to these lights, the conductor and brakeman on the crane' also had lanterns which they carried with them in doing their work. There was a sharp conflict in the evidence in regard to the condition of the are lights, and the amount of light which they gave while burning. This question, however, is of minor importance, inasmuch as the negligence complained of, which was finally relied upon at the trial, was not based upon any insufficiency in these stationary lights, but upon the alleged defective character of the hand lantern which plaintiff was using on the night of the alleged injury. Upon that subject the declaration, after alleging the duty of the defendant, averred that the defendant, not regarding its duties, then and there carelessly, negligently, and wrongfully did fail and omit to perform its said several duties in that behalf, in the following particulars:

(5) “In that it failed to provide, furnish, and supply plaintiff and its other employees, working about such yards in the nighttime, with suitable and sufficient lights so that they might carry on their work with reasonable safety, and be able to distinguish objects upon, along, and near such tracks, although said defendant had often promised plaintiff so to do, and assured plaintiff and its other employees that, if they would continue to work with such lights as were then provided, other and suitable and safe lights would be provided in the immediate future.”
(6) “In that it failed to furnish and supply plaintiff working about such yards in the nighttime with a lantern so constructed that-the light therein would not be extinguished by an ordinary draft of wind, but, on the contrary, provided plaintiff with a certain lantern so constructed that .the light therein would be extinguished by ordinary drafts of wind.”

The 1909 injury is claimed to have resulted from plaintiff being pinched between a box car and a pile of iron pile driver weights standing near one of defendant’s private tracks in the yard. These tracks were of standard gauge, and connected with the public tracks in the street, so that freight cars could be taken in and out of the yard for loading and unloading; but all such switching operations were carried on by the locomotive cranes operated by the defendant’s yard gang, and not by the railroad company. Some of these tracks were used more than others, and the ground adjoining all of them was used as a general piling ground for heavy material of various kinds which had to be handled by the cranes.

This alleged injury is somewhat extraordinary in that, although plaintiff claims that it resulted in serious injury to him, it is not claimed that it was brought to the attention of the defendant’s officers or the yard foreman at the time, and they knew nothing whatever about it until after the second injury, and the threatened litigation resulting therefrom. Plaintiff did not stop work on the night of the 1909 injury, or on the succeeding days, and, inasmuch as there was no other eyewitness of the accident, the plaintiff’s testimony must be looked to to ascertain the facts. He claimed and testified on the trial that he had ordered the engineer to move a freight car away from the foundry, so that another car could be placed for unloading. The car to be moved away was a wide box car loaded with coke. The point to which it was to be moved was just below or south of a “diamond” at the junction of two tracks called the “Boiler Shop Track,” running east and west, and the “Yard Track,” running in a northeasterly and southwesterly direction, so that the movement of the car on the yard track was substantially from northeast to southwest. He testified that the arc lights were not burning; that it was dark and rainy, and that, after going from the yard foreman’s office to the point where the car was expected to stop, to wit, the diamond, and not finding it there, he started walking close beside the track, and on the easterly side thereof, toward the northeast, from which direction the car was coming; that, after crossing the diamond, his lantern blew out, and that, after stopping a moment, he continued to-walk in the dark towards the approaching car, and so close to the track that he was caught between the car and the weights piled beside the yard track. This car was being moved by the crane called “Big Sandy,” which was geared to run at a rate of speed not to exceed four miles an hour, and the evidence tends to show that the car was moving at a rate of from three to four miles an hour; the car being ahead, and being pushed by the crane in approaching the diamond. The plaintiff testified that he knew that the weights were there, and that he had worked in that vicinity loading and unloading iron on frequent prior occasions. He also testified that he noticed the weights, and knew that he was alongside of them, and had walked alongside of them for half their length before he was caught by the car. The only negligence claimed upon the final submission of the case was in respect to the lantern. This appears by the charge of the court very clearly, as is shown by-the following excerpt therefrom:

“You will observe, gentlemen of the jury, with respect to this claim, that the only claimed negligence on the part of the plaintiff is negligence in respect to the lantern, so that upon the subject of this accident you will not consider any claim of negligence except a claim based on the failure to furnish a lantern as stated in this request. I made that statement here because upon the trial there was testimony with respect to the lights, and testimony in respect to the position of some iron stuff there, pile driver hammers, I believe, or something of that kind. That is out of the case.”

Relating to the injury, the plaintiff testified as follows on his direct examination:

“When the cars approached, I was looking up towards the northeast along the track. The train came from in front of me. I couldn’t see very much at all because the lights were out; my light was out, and it was dark there, and I got in between the weights, and I knew they were there, but the car struck me.
“Q. When you got in between the weights so as to know they were there, how close were' you to the weights ?
“A. Why, just close enough that I had to walk right aside of them. I walked right beside the weights as I passed them. The train hit me before I could get out of there, or know anything about it. There was no light showing on the train. I was looking right in the direction from which it came. After it was near enough so that I saw it, I did not have time or opportunity to get out of the way. I didn’t have time to turn around because just as it came it caught me on this side and turned me over.
“Q. Why didn’t you step away from the track?
“A. Well, I was walking along the side of the weights, and the track came along this side. I didn’t have—
“Q. Which car came in first?
“A. The box car. The crane was up at the other end. At that time my lantern had gone out. * * *”

On cross-examination plaintiff testified:

“Q. How did you know when you got over to the diamond?
“A. I walked over, and my lantern was lit until I got there.
“Q. How far did you walk after your lantern went out?
“A. Just got in between the weights.
“Q. That doesn’t answer the question as to how far you walked after your lantern went out.
“A. It was about 8 or 10 feet, as I can get at it.
“Q. How did you see to walk?
“A. Well, I walked up alongside of the track; that was all.
“Q. Could you see the track?
“A. I could see a shadow, to look right down.
“Q. See your own shadow, you mean?
“A. No; the track. I didn’t have any light to see the track by. I knew where I was because I was across the tracks when my light was lighted. I know I was on the righthand side because I was alongside of the weights. My lantern went out at the diamond, and I stepped off the diamond, and my lantern went out. I don’t remember exactly if I stepped over any rails after it went out. There was no sidewalk to walk on, just the ground. I was on the outside of the tracks. I think the ties were covered with dirt, level. I did not stumble when I walked. I did not have any light to walk by, after the lantern went out. When I got to the pile of weights I knew I was there, because I was right aside of them. I was right up alongside of them with my clothes. I did not put out my hand and feel. I knew it was the weights because I knew by the tracks there and the “Y” that they were there. I saw that they were the weights when I got right up to them. I got right to them before I saw what they were. I brushed right — with my clothes. I was just about halfway along the weights when the car came along and caught me. They were working in the boiler shop, and the lights were lit in that shop, nothing extra bright that I know of. * * *
“Q. Just where were you when your lantern went out? Tell us just where you were.
“A. I just crossed the diamond.
“Q. You mean by that your foot was still on the diamond, or your foot had just left it? I want to know whether you had actually stepped off the diamond or not.
“A. Well, I was across the diamond, and right into the corner there, and I just stopped for a moment to see if I could hear them coming.
“Q. Did you stop before or after your lantern went out?
“A. I stopped when my lantern went out; my lantern went out just as I got across the diamond, and I got right there opposite the track.
“Q. Your lantern did not go out until you had time enough to see the weights with the lantern, did it?
“A. Well, I cannot — I had my mind on the crane, and I don’t remember looking at the crane just then.
“Q. So you don’t know as you walked toward that pile of weights whether you could see them with your lantern, whether you could see them at all with anything, or whether you just by good luck walked into that little narrow space, because you didn’t^ happen to walk against them; you don’t know which it is ?
A. Well, if my lantern was burning, and I wasn’t looking down to see if I could see the crane coming, and I looked at them weights, I could see them from there, if it was burning.
“Q. Well, which was it?
“A. Well, I said it went out when I went across the diamond.
“Q. Did it go out before you had a chance to see the weights?
“A. I don’t remember looking at the weights just then, going across there with it lit.
“Q. So it went out then before you did see the weights, did it?
“A. My lantern went out, and I don’t remember seeing the weights.
“Q. Then, if you did walk in there in that spot without striking anything, you did it without any light to help, did you?
“A. There was no light; the lights were out in the yard. This car was a box car, with coke in it. I was walking along and just nicely got by, along in the weights here, brushing along like that, and the car struck me. I brushed against them, and I felt them.
“Q. And of course then you realized that there was a pretty small space you were in there, didn’t you?
“A. I did when the car struck me.-
“Q. You did before the car struck you, didn’t you?
“A. I didn’t have time to think any more than I knew I had brushed up against the weights, and the car caught me right there.
“Q. So the car must have been very close to you when you walked across the diamond, must it not?
“A. It must have been coming down all right; it caught me when I was down there.
“Q. It must have been within 10 or 15 feet when your lantern went out?
“A. I don’t know how far away it was. That is, I don’t know just how fast the car was coming down. I mean by that that the only thing I can say to explain that, that it caught me when I got in between the weights. I knew how the tracks were laid then. I did not need any light to keep from running against the end of these weights because I knew where I was when I got.across the diamond there. . I knew the weights were there. I walked right straight up—
“Q. Answer that, ‘Yes’ or ‘No.’ Did you know where they were well enough so you could keep from running into them without seeing them?
“Ao About that.”

The undisputed evidence shows that at the time of this employment plaintiff continued to work for the defendant until September 17, 1910. He began work again on May 1, 1911, and he worked the entire month of May, except Sundays and Decoration Day, the entire month of June, except Sundays, and June 1st and 22d, and six days in July, ending with July 10, 1911.

As has been stated, the negligence charged in respect to the second injury was the employment and retention of an incompetent, careless, heedless, and reckless engineer. The declaration in the second count, after alleging the duty of the defendant, proceeded as follows:

“Yet the said defendant, not regarding its aforesaid several duties, then and there carelessly, negligently, and wrongfully did fail and omit its said several duties in the following particulars:
' “(1) In that it provided and placed in control of the operation of such crane in the raising, moving, and lowering of heavy objects a certain incompetent and untrustworthy engineer, to wit, Jack Cramer.
“(2) In that it provided and placed in control of the steam brakes and other appliances by which the movement of the arm of such crane was controlled a certain careless, incompetent, and unskillful engineer, to wit, one Jack Cramer.
“(3) In that it employed and placed in control of the appliances by which said arm was operated a certain engineer and employee who was careless, heedless, and reckless, to wit, one Jack Cramer.
“ (4) In that it failed to discharge from its service a certain reckless, careless, and incompetent engineer in charge of the appliances controlling the movement of the arm of such crane, to wit, one Jack Cramer.”

At the time of the second employment the plaintiff was acting as brakeman in the yards. At the time of the second alleged injury the crew were unloading boilers from a “larry” or small freight car onto the ground. The boilers were about four feet in diameter and seven to nine feet high. In lifting the boilers the men used a long rod which had an eye at the top, and a thread at the bottom, upon which a nut or burr could be screwed. Plaintiff, as brakeman, took hold of the hook hanging from the arm of the crane, and upon which the eye of the boiler rod was hung, and was lifted by the crane onto the top of the boiler to be unloaded. He then inserted the rod in one of the boiler flues near the center, and the conductor, Weaver, put his hand through the opening at the bottom and screwed the nut onto the bottom of the rod. The boiler was then lifted onto the ground, and the nut was then unscrewed, and the rod lifted out of the flue by the crane. Under ordinary circumstances, there was no occasion to unhook the boiler rod from the crane; but it was lifted from one boiler to the next without unhooking, so that, to release a boiler which had been unloaded, nothing was required except the unscrewing of the nut from the bottom of the boiler rod, which was done from the ground.

It was the contention of the defendant that therefore, although it was necessary for a man to be on top of the boiler when the rod was inserted in the flue before the boiler was lifted, it was wholly unnecessary for any one to be on top of the boiler when the boiler rod was taken out, that plaintiff did no work that was required by his position after he had fastened the boiler rod to the hook, and that, after he had placed the boiler rod in the flue, he therefore had the choice between climbing down from the boiler before it was lifted from the car or “riding the boiler” as it was called, viz.: Staying on top of it while it was lifted and placed on the ground, and then riding to the ground again on the hook. Whether ladders, or devices which could be used as ladders, were available was a disputed question; but it was undisputed and stated by witnesses for both sides that it was possible, although somewhat difficult, for a man to climb down from the boiler, without assistance, by making use of the projections on the sides of the boiler. On the date of the second injury plaintiff remained on the boiler, instead of climbing down, and was injured while it was being lowered. It was the rule for the engineer in lifting and lowering the boilers to follow the directions given him by the conductor. There is no claim that the engineer, Cramer, disobeyed any direct signal on the date of the accident; but there is a conflict of evidence as to what extent he acted upon his own initiative, without waiting for the signal. Plaintiff and the conductor testified that the engineer lowered the boiler or dropped it, without waiting for the signal; also that he improperly lowered it with the brake, instead of the engine. The plaintiff claimed that the coupling slackened, and the block came against him and knocked him off his balance, and against another boiler, and from there he fell to, the ground, that his stomach and lower ribs struck the top of the other boiler, and that he also hurt his hips. The engineer, Cramer, in his testimony, disputed this version of the accident, and testified that he followed the conductor’s signals and lowered the boiler properly ; that it was going down between some other boilers, which cut off his view, so that he could not see the’bottom of it, but it seemed to catch on something which made it tip, and made plaintiff slip, but he did not fall, or strike anything; that the boiler was lowered in the place selected by Weaver, the conductor, and apparently, through Weaver’s mistake, struck a projection on the side of one of the other boilers, which was the cause of the tipping. He also testified that he was using the engine to lower the boiler, and that he lowered it at a safe speed if properly placed, and that it was the conductor’s business to see that it was properly placed. The conductor, Weaver, was discharged the same day, and the engineer, Cramer, was retained, and was still working for the defendant at the time of the trial.

The evidence shows that the plaintiff reported the second accident at the office, and was examined by the company’s doctor, who testified that plaintiff complained only of a sore or sprained hip, and that he saw no external marks of injury. He nevertheless, as a precautionary measure, told the plaintiff to stay at home for a few days. The accident occurred May 31, 1911, and plaintiff returned to work June 2d, and continued to work continuously, with two days’ absence during the entire month of June, and a few days in July, when he finally left defendant’s employment.

As has already been ,said, the plaintiff made no claim on account of his first injury until after the occurrence of his second injury. At the trial plaintiff claimed that he had to cease work because he grew weak and had pains in his back and stomach, that he had since had an operation, which had improved his condition, but that he still was troubled with weakness and pains in the back. There was medical testimony introduced by both parties. The court held that the answers of the physicians to the hypothetical questions put to them raised a question of fact with respect to the connection between the injury, or injuries, and the disease, and submitted the case to the jury with respect to both injuries. The jury rendered a general verdict for the plaintiff for $1,250, presumably basing the verdict upon both of the claimed injuries, and a judgment for plaintiff followed.

The defendant brings the case here upon writ of error, and the principal errors assigned are directed to the refusal of the trial judge, either to direct a verdict for defendant in respect to both of the claimed injuries, or at least to charge the jury that plaintiff could not recover for both of them.

Appellant’s claims relating to the first alleged injury may be summarized, in part, as follows:

(1c) “The extinguishment of the lantern was only remotely connected with the injury. It was followed by another independent intervening cause which could not reasonably be anticipated, viz.: Plaintiff’s voluntary act in walking toward the approaching car after his lantern was extinguished. The only act of the defendant which had any causal connection with the injury was the placing of the weights near the track, and all claim for recovery on this ground was abandoned.”
(le) “After plaintiff’s lantern was extinguished, he had ample time to seek a position of safety for the purpose of relighting it. By walking toward the crane without relighting it, he voluntarily created a new and increased risk, which was the real cause of his injury. This risk was assumed by him, and this conduct on his part constituted contributory negligence.”

It is the further claim of the defendant that a verdict should have been directed in regard to the second injury, for the following reasons:

(a) “There was no proof of incompetency on the part of Cramer. He was merely accused of being stubborn, unpopular, and hard, to get along with.”
(b) “Cramer’s incompetency (if any) was not the cause of the injury. None of the eyewitnesses of the accident téstified that the dropping of the boiler resulted from any of Cramer’s particular characteristics which were the subject of criticism.”
(c) “There was no proof of any knowledge on the part of defendant of any such conduct on the part of Cramer as would disqualify him for the work he was doing.”
(d) “Cramer’s incompetency (if any) was assumed by the plaintiff, first, because plaintiff had worked with him long enough to know all about him by actual experience, and, second, also because Cramer’s general reputation (whatever it was) was notorious among the men working in the yard, so that plaintiff, having worked in the yard with him for more than a year, was chargeable with constructive knowledge of the facts, even if he had no actual knowledge.”
(e) “Plaintiff was guilty of contributory negligence in riding the boiler merely to save the trouble of climbing down from it.”

Relating to the first injury, the defendant requested the court to charge the jury as follows:

(21) “The mere fact that plaintiff had never measured and may not have known the exact distance of the pile of weights from the track did not excuse him for failing to keep out of danger. In that case it was his duty to take no chances, and, if he did not know whether there was room between the pile of weights and the car, he should have kept away from that point.”
(23) “If, after plaintiff’s lantern went out, he could have stepped aside into a safe place and have lighted it again before going on with his work, then it was his duty to do so, and he was guilty of contributory negligence in continuing to walk toward the car without stopping to light his lantern.”

These requests to charge were refused.

The evidence is clear that plaintiff had an abundance of opportunity, from his position, to have relighted his lantern.

It is the claim of defendant, with reference to the first alleged injury, that under the testimony of the plaintiff and the allegations of the declaration the plaintiff must recover, if at all, on the theory that he was hunting for the approaching car with a lighted lantern, and was injured because his lantern went out, so that he could not see the car, and not because the engineer could not see him; that as his first alternative he could have stepped to the east a few feet, and could have stood there in safety until the car passed. From this position he could have called to the engineer as the crane went by. The crane could not run faster than four miles an hour, and a man could walk ahead of it on the track in safety.

It is unnecessary to state the different courses of conduct which were available to the plaintiff, at the time his lantern went out, to have preserved his safety, according to his own testimony. He could have walked away from the approaching car until he was south and beyond the point where it had been ordered to stop south of the diamond; he could have stepped aside to the crib near at hand, or to the place where the plates were sitting between the posts at his right for an opportunity to relight his lantern; he could have done many things in perfect safety, except the one thing which he did, namely: To place himself in the trap between the weights and rail just as the car approached. He knew that this trap existed, as shown by his testimony above quoted. Upon his own testimony, he set out to hunt for what he claims was a dangerous, moving car, already overdue, by walking along the track toward it when it was, as he claims, so dark that he could not see the car when it approached. If this did not constitute contributory negligence, it is difficult to state what would constitute such negligence. It is not necessary to cite our own cases holding that, where there is a comparatively safe and a more dangerous way of discharging a duty, it is negligent to select the more dangerous. Two of the latest cases to this effect are Wight v. Railroad Co., 161 Mich. 216 (126 N. W. 414), and Lukovski v. Railroad Co., 164 Mich. 361 (129 N. W. 707).

We agree with defendant’s contention, also, that the extinguishment of the lantern was not the proximate cause of the plaintiff’s injury. The extinguishment of the lantern was followed by another independent intervening cause which could not reasonably be anticipated, namely: Plaintiff’s voluntary act in walking towards the approaching car, and between the weights and the track, after his lantern was extinguished. This, we think, was the proximate cause of the injury, and for this act defendant was not responsible.

We are clearly of the opinion that for these two reasons, without searching for others, the case, in so far as it related to the first alleged injury, should have been withdrawn from the consideration of the jury, and that defendant’s requests above indicated should have been given. The record shows that the case was submitted to the jury upon the plaintiff’s claim that he was entitled to recover for both injuries. This of itself was prejudicial error, and must result in a reversal of the case.

No question is raised in the record because the two causes of action were joined in one declaration. Probably this practice cannot be criticised as matter of pleading. The general rule seems to be that counts upon distinct and independent torts of the same nature, and upon which the same judgment may be given, may be joined; but, where both counts are submitted to the jury, and there is a general recovery upon both, and it turns out that one was erroneously submitted, it is equivalent to a mistrial, and a new trial must result.

, Referring to the second alleged cause of action for the claimed injury of May 31, 1911, we would say that we have read the entire record with great care to discover whether or not the plaintiff, by his evidence, made out a case which entitled him to go to the jury, and, if so, whether or not there was reversible error upon the trial thereof, or in the manner in which the case was submitted". A perusal of the record discloses that, as to the second claim, there was a sharp conflict in the evidence upon nearly every material fact asserted by either party. Whether or not Cramer was either incompetent, unskillful, careless, heedless, or reckless was in dispute. Whether, if Cramer was either, plaintiff had knowledge ,or notice for a sufficient time so that it could be said that he assumed the risk was in dispute, as well as whether such conduct was the proximate cause of plaintiff’s injury. Also whether plaintiff was in his conduct guilty of contributory negligence presented facts upon which there was a sharp conflict. It was contended that plaintiff was guilty of contributory negligence because he was riding upon the crane. There was testimony tending to show, not only that it was proper for him to ride there, and that it tended to dispatch the work, but that he rode there in accordance with the custom, and with the permission, if not the direction, of the yard foreman, who seemed to have almost plenary power upon the premises. This was denied by the defendant. Under these circumstances, we think, the question of contributory negligence was one for the jury.

The charge upon this branch of the case was a careful one, and we have reached the conclusion that, in so far as the trial of the case related to the alleged second injury, there was no reversible error.

For the reasons above pointed out, however, the case must go back for a new trial, because it is impossible for us to determine what portion of the damages were awarded to the plaintiff for the alleged injury of November, 1909.

The judgment of the circuit court is reversed, and a new trial granted.

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