
    Wolsey v. The Lake Shoes and Michigan Southern Railroad Co.
    1. If an employe enters into or remains in the service of a railroad company, with a knowledge of its rules and regulations, he must be held as undertaking to acquiesce therein; and if he is afterward injured, by reason of his violation of such rules and regulations, he can not claim that their reasonableness is a question to be decided by a jury, in an action by him to recover damages for the injury thus occasioned.
    ■2. If the employe has suifered an injury, brought about by a violation of the plain instructions of his principal, he can not hold his principal liable therefor.
    Error to the District Court of Lucas county.
    Wolsey brought suit in the court of common pleas to re-cover from the railroad company for an injury happening to him while brakeman. He was engaged in coupling cars upon a train, when his right hand was caught, by the cars coming suddenly together. It. was claimed by him that there was negligence on the part of the railroad company •in many particulars, such as that the coupling apparatus was insufficient, and that the locomotive was out of order .and not controllable by the engineer, to the extent of entire .safety. Plaintiff recovered verdict and judgment.
    The defendant below gave in evidence a rule which had been printed on the time-tables of the company about six months when the accident occurred, of which the following is a copy: “ 30. Great care must be exercised by all -persons when coupling cars. Coupling by hand is strictly prohibited; a short stick must always be used to guide the link.” The plaintiff admitted that he had knowledge of this rule, but testified that it was impracticable, and had never been observed.
    In charging the jury upon this part of the case, the court said: “The defendant claims that the plaintiff was in a measure the author of his own injury, and guilty of negligence in not obeying a rule which the company had then in* force. The rule has been read in your hearing, and the-substance of it is, that these couplings must be made with a short stick, and that the hand is not to be used. Now I speak of this as a rule; if it is impossible to make these couplings with a stick, why, from the very necessity of the case, the rule can not be enforced ; and if it is more dangerous to make these couplings with a stick than it would be to make them with the hand, it is an unreasonable rule, and the law would not enforce it. And if, as it is claimed here by the plaintiff, this rule was not made in good faith, but was made with the intention of protecting the railroad from any liability it might be under in accidents of this-kind, and there was no intention of the railroad company, that the rule should be observed, why, that is no rule at all, and of course would not defeat the action. But if you find that it was a practicable rule and a reasonable rule, and that the rule was adopted by the company in good faith, with the intention to prevent injuries of this character to-the brakemen in its employ, why, it is a perfect defense to this action ; that is, if it is a uniform rule, a rule that is not varied; not if it is a rule subject to exceptions. Now, if there are instances in their ordinary run of business where couplings can not be made with a stick, if such instances do occur, and it is impossible to make them, and dangerous to make them, why, then the rule can not be carried out. There arises a time, then, when from the impossibility of making these couplings with a stick, that the rule can not be carried into force, and some discretion must be exercised by the men coupling. Now, whether that instance happened at this time it is for you to judge from the evidence. Now, taking all the circumstances of this case as revealed to you in the evidence, looking at the coupling as presented to you in the evidence, with the draw-head of one car a little lower than that of the other; the rails, if you so find them, projecting over from one car, and taking all the evidence bearing upon that point at the time the coupling was made; in other words, putting yourself on ithe spot at the time the accident occurred, and looking at that coupling, and if you find that it was impossible to make that coupling with a stick, that it was incurring more danger to do it with a stick than without a stick, then I say it was for this brakeman, the plaintiff, to exercise or.dinary care and prudence in making that coupling, as he saw best: and if you find from the evidence that he did ■exercise ordinary care, then he is free from fault.”
    A large number of charges were asked by both defendant ¡and plaintiff, many of which were given. Defendant below asked the following: “IX. The defendant had the .right to make such rules and regulations for the conduct of its servants and agents while engaged in its service, as, .in its judgment, were reasonable and proper, or would conduce to the safety and comfort of its employes; and all •servants, while engaged in such service, with a knowledge -of such rules and regulations, were bound to act in conformity therewith; and if the injuries were sustained by ¡them while acting in violation thereof, no recovery can be had of the defendant therefor, if such violation was the ■cause of, or materially contributed to, such injury.”
    This the court refused, but did charge as follows: “ That ¡■the defendant had the right to make such rules and regulations fpr the conduct of its servants and agents while engaged in its service, as were reasonable and proper, or would conduce to the safety and comfort of its employes; .and all servants while engaged in such service, with a knowledge of such rules and regulations, were bound to act in conformity therewith, and if injuries were sustained by them while acting in violation thereof, no recovery can be /had of the defendant therefor, if such violation was the cause of, or materially contributed to, such injury.”
    The charge given, differs from the charge asked, only in the ■omission of the words “ in its judgment.”
    Defendant also asked the court to charge that: “ XI. The -company is not liable for an injury which happens to an ■employe in consequence of a disregard of -its plain instruct•■tious, even though other employes also disregard the same.
    
      “ XII. If the- defendant, in the exercise of its discretion,, adopted a rule for the conduct of its employes while engaged in its service, and intended for their personal protection against injury; and an employe, knowing the rule,, neglected to avail himself of its provisi' ms, and in consequence of such neglect sustained an inju-.y, he can not hold, the defendant liable therefor.”
    These charges were refused, proper ex .option being taken..
    Judgment having been entered in fa"\ or of Wolsey, in the-court of common pleas, the railway company filed a petition in error in the district court. That court reversed the judgment ,of the common pleas, for refusing to instruct as-required in the 9th, 11th, and 12th instructions above. To reverse this judgment of the district court, Wolsey filed his; petition in error in the Supreme Court.
    
      Scribner Hurd, for plaintiff in error:
    The question of negligence is for the jury. (Railroad v. Stout, 17 Wallace, 657, and eases there cited.) All the facts bearing upon the question of negligence should be presented to, and considered by, the jury. The symmetry of the rule of law is not to be impaired by the regulations of a railroad company. The company can not, by its own decree, establish that the failure to observe their regulations shall be conclusive evidence of contributory negligence, as against an employe. This is beyond the power of legislative authority even. (Cooley, Constitutional Limitations-[1st ed.], 368, 369.) Neither can it, by any such action on. its part, withdraw the question of contributory negligence from the consideration of the jury, and devolve its-determination exclusively upon the court. Whether or not a rule, adopted by a railroad company is reasonable, is to-be left to the jury, under instructions from the court. 1 Redf. on Railw., chap. 6, § 1, par. 2; Day v. Owen, 5 Mich.. 520; Ayres v. Morris and Essex Railway Co., 5 Dutcher, 393; Smith v. Pittsburgh, Ft. Wayne and Chicago Railway Co., 23 Ohio St. 10. The rule relied upon in the case at bar, it will be observed, related solely to the manner in. which the plaintiff should perform a certain piece of work; it purported to he for his special protection. It had nothing to do with the general management or operation of the trains of the company. Whether this particular service, under the circumstances existing at the time, was negligently performed by the plaintiff, was a question of fact; whether, under the circumstances, he was negligent in not using a stick, was a question of fact. It was not for the court to say, as a matter of law, that the plaintiff should have used a stick. The correct determination of this question depended upon a fair consideration of all the testimony showing the situation and condition of the cars, the situation and condition of the couplings, of the dead-woods, with which the cars were equipped, of the necessity of prompt action, and all the other attendant circumstances detailed by the proofs. Wharton on Negligence, § 219.
    2?. E. T. Waite, for defendant in error :
    A railway company may adopt reasonable rules and regulations for the performance of its duties in the transportation of passengers, and the passengers are required to conform to them. But whenever a question has arisen as to the reasonableness of a particular rule, the courts have invariably, so far as possible, taken it upon themselves to determine the question ; and but one reported decision can he found — that of Morris and Essex R. R. Co. v. Ayres, 5 Dutcher, 392 — in which such a question has been fully submitted to the jury. While in New York and Illinois, where that'question was distinctly raised, it has been held to be error for’a court to submit to the jury the question, whether a rule adopted by a railroad for the government of its business is a reasonable one or not; and that such question is one purely of law, and must be determined by the court. Vedder v. Fellows, 20 N. Y. 126; Illinois Central R. R. Co. v. Whittemore, 43 Ill. 420.
    The reason for this is obvious. If each rule is to be determined by the particular circumstances of every case that may arise under it, not only would the public be in conveuienced, but carriers of passengers be practically disabled in the performance of their duties. A decision once made with reference to a rule should be of general application and conclusive, not local merely and temporary.
    And the reasons assigned why a rule for the government of passengers should he reasonable, are based upon the fact that the necessities of a traveler give him no option or choice as to the terms of his contract. He has no opportunity for rescinding the contract if the terms prove objectionable, nor for protecting himself during the passage. Hence the courts rightfully interfere in his behalf. Johnson v. Concord Railroad Corporation, 46 N. H. 213; Dietrick v. Pennsylvania R. R. Co., 71 Penn. St. 432, and the authorities there cited; Commonwealth v. Powers et al, 7 Met. 596; C., C. & C. R. R. Co., v. Bartram, 11 Ohio St. 457.
    It is the duty of a railway company to adopt rules and regulations for the government of its employes. And if it is necessary for a passenger to comply with rules adopted for his conduct, it is even more so for an employe to comply with those adopted for bis government, since in many instances the lives of passengers depend upon this strict obedience. And if it is just that the reasonableness of rules for passengers should not be submitted to a jury, it is, at least, equally so that those for the government of employes should not. But, as between the company and the employe, we claim, that not even the courts should attempt to determine the merits of any such rule or regulation. In doing so the courts would virtually assume control of what has become a complicated and highly important business. An employe, unlike the passenger, is in nowise forced into his engagement with the company. The contract is deliberately entered into, with full opportunities for ascertaining all his duties, and the rules he may be required to comply with ; and he is at liberty to withdraw from the service at any time he finds it objectionable. Certainly in the management of its passenger trains the company should 'have the right to rely upon and be protected in requiring a strict obedience from an employe of all its known rules and regulations, relating thereto. Suppose an accident to occur by ■which the employe should be injured and the lives of passengers lost, in consequence of a known rule for the conduct of those ru Lining the train having been disregarded by the injured employe, simply because he and others considered the rule a frivolous one, or one that could not be followed with safety to themselves. In an action by this injured servant, would the court undertake to inquire into the propriety of the rule, or ascertain if the employe ivas correct in his •opinion or not, especially after the disobedience had resulted in the loss of life ? If this would not be done in an instance •of this kind, where will the line of distinction be drawn between rules to be inquii-ed into, and those not ? The only safe course will be to let the company, as between itself and its servants, manage its own business. When no rule as to a particular conduct has been adopted, or the employe found to be excusably ignorant of a rule, then the courts might properly undertake to ascertain if the ■conduct of the servant was reasonable or not under the circumstances. But the employe should be left to stand the result of his own delibeL’ate disregard of a known rule. .If he ■can not consistently obey, he should leave the service. If he considered it a personally dangerous rule, he should, at at least, make known his objections, before he would be excused in a persistent disregard of it. But however it be decided about even the courts undertaking, to inquire into the propriety of such established rules, there are still stronger reasons why neither the rights of the public nor •of the company, in matters of such vital importance to both, should be subjected to the varying opinions of juries.
    A railroad employe has the right to expect and exact that the company furnish him with suitable and safe instrumentalities for the performance of his work, and the company should have the equal right to expect and require him to use such instrumentalities in accordance with its instructions. But if an employe continues without objection to -use them, knowing them to be unsafe or unsuitable, he is deemed to have waived his right to damages from injurious results from such use; and so, if he continue to use them,, knowingly, in oppsition to the direction as to their use, he-should .be deemed to have waived his right to damages for injurious results from such disobedience, independent of any question as to which was the best or safest method of use. Railroad v. Barber, 5 Ohio St. 541: Ford v. Railroad, 110 Mass. 240.
   Wright, J.

The statement of the case involves, and we only propose to consider this rule No. 30, and the charges given.and refused with relation to it.

By the ninth charge the railroad company asked that as to the conduct of its agents and servants, while in its service, it had the right to make just such rules and regulations, as in its judgment were reasonable and proper. The-charge, however, was that the railroad company was authorized to make such rules as were reasonable. Thus-making somebody else the arbiter as to the reasonableness-of rules, and not the railroad company, and leaving it to the jury to judge of such a question.

As to outside parties, those not in the service of the company, it is generally maintained that an inquiry as to the reasonableness of rules and regulations is proper. 1 Red. Ry., ch. 6, § 1, etc.

These questions must frequently arise with reference to-passengers, but even then it is held that the question of reasonableness or not is purely a question of law to be determined by the court, and never to be left to the jury. Vedeler v. Fellows, 20 N. Y. 126 ; Ill. Cent. R. R. v. Whittemorer 43 Ill. 420.

The reason, and a sufficient one, for thus holding, is, that as a question of law certainty is ascertained. If it be submitted to juries, one jury may hold a rule to be reasonable, the next may hold the reverse.

Although the reasonableness of a regulation may be disputed by a passenger, we find no case where it has been allowed to an employe of the company. If a railroad company can not have strict compliance with its orders from its servants, subordination and discipline would be at an end.

If the employe is justified in disputing the reasonableness or propriety of a regulation, it- must follow that-he is justified in disobeying that regulation, if his judgment so dictates, and upon such principles railroads would-be run with the greatest difficulty, and most imminent danger to the traveling public.

These companies are held to a severe line of responsibility for the acts of their servants, upon the idea that the act-of the servant is the act of the master; because the master has told the servant exactly what to do, and he has done it.

Certainly the whole law, “ qui facit per ctlium” etc., depends upon the idea of obedience to-.orders. The conduct of a gigantic corporation, with hundreds and thousands of employes, is not unlike that of an army; its entire action depends upon the fact that the commands emanating from authority are to be complied with by every one subordinate-to that authority.

In this case, a rule is in force, known to the employe, directing him how to couple cars. He willfully disregards-that rule, refuses to obey it, and is thereby hurt; hurt simply because he disobeys an order. It can not be proper that he should now claim damages for that hurt, because, he-says, in his judgment, this was not a reasonable rule. It must be allowed that, as to their own employes, companies may be allowed to make such rules as they think best. No-one need accept service under such rules, except of his own volition; but, having accepted, he is bound by them, at least so far as that he can not recover damages for a direct •violation of them.

Judgment affirmed.

Johnson, Chief Judge,

dissents, on the ground that the railroad company is not the sole and final judge of the reasonableness of its rules and regulations, prescribing the-mode and manner in which its employes shall perform their duties, and, in an action for damages for its negligence, can not excuse itself for such negligence by showing a failure by the employe to observe a rule which is, in fact, unreasonable and dangerous, where the employe has otherwise exercised ordinary care and prudence in the premises.

Scott, J., dissents, on the same ground.  