
    Charles Farmer, Administrator of the Estate of Elmer L. Van Dusen, Deceased, v. The Michigan Central Railroad Company.
    
      Railroad companies — Injury to switchman of adjacent road — Contributory negligence.
    
    Where, in a negligence case, it appears that the accident would not have happened but for the fact that the decedent voluntarily and unnecessarily occupied a place of great danger, nor even then but for his own inattention, there is no escape from the conviction that his negligence contributed, to his death, which, under the well-settled rule, precludes a recovery.
    Error to Washtenaw. (Kinne, J.)
    Argued January 17, 1894.
    Decided February 20, 1894.
    Negligence case. Defendant brings error.
    Eeversed.
    The facts are stated in the opinion.
    
      M. V. <& 11. A. Montgomery, for appellant.
    
      A. J. Saioyer, for plaintiff.
   Hooker, J.

The Toledo, Ann Arbor & North Michigan Eailroad crosses the Michigan Central Eailroad at Ann Arbor, above grade, and nearly at right angles. The tracks of the two companies are connected by a Y, over which a large number of cars are daily transferred from one road to the other. At the point involved in this case, the Michigan Central Company has four tracks, numbered from 1 to 4 upon the diagram of the premises on next page.

The outer one, marked 4, is the main track. No. 3 is its long siding. No. 2 is another siding, kept for the deposit of cars from the Toledo & Ann Arbor road; while No. 1 is still another siding, the use of which does not

appear to have any significance. It is a track which branches from No. 2, and is connected by the switch B, as is a short track connecting sidings numbered 2 and 3, the connection with No. 3 being at switch marked C.

On the day in question, the engine of the Toledo. & Ann Arbor Company was standing on track No. 2, awaiting the return of the Michigan Central engine over the Y from the Toledo & Ann Arbor yard. It necessarily stood sufficiently far north of switch B to permit the Central engine to clear it as it passed over the short track from track 2, with which the Y was connected, to track 3, which, ns the diagram shows, must have brought its tender near to switch C. Plain tiff's intestate was a switchman, employed by the Toledo & Ann Arbor Company, and, after the return of the Central engine, he threw the switch so that the Toledo & Ann Arbor engine could go upon the Y, and orossed the track, and stood with a fellow brakeman, one Wright, awaiting his engine, a signal being given by Wright -to the engineer. These men were expected to get upon the footboards of the engine as it passed, — Wright in front, and Van Dusen in- the rear. The testimony shows that the ■engine came down slowly for that purpose, attaining a -speed of five or six miles an hour, when Wright stepped ■on, leaving Van Dusen standing between tracks 2 and 3. Meantime the Central engine backed up to and beyond switch C. It had a box car attached to its pilot, so that ■on its return from switch C it was pushing the car. After this engine had passed switch C, the Michigan Central brakeman threw the switch so that it would return upon track 3, and, when it came by, climbed upon the box car. He testifies — and there is no testimony to the contrary— that as he climbed up the side of -the car, when near the top, he saw Van Dusen standing with his heels close to track 3, apparently not noticing the approaching car, and he tried to attract his attention by shouting and waiving his arms, but failed, and Yan Dusen was struck by the car. At this time a heavy freight train was passing upon track '4, running about 20 miles an hour. Yan Dusen was killed, and this action is brought to recover damages for alleged negligence.

It is manifest that the box car must have overtaken and passed the rear end of the tender of the Toledo & Ann Arbor engine before reaching Yan Dusen. The attention of the Toledo & Ann Arbor crew was attracted by the shouting of the Central brakeman, who then pointed to Yan Dusen, who was, when their notice was attracted, under the wheels of the Michigan Central engine. The distance between the outside of the rails of the tracks 2 and 3 is 7 feet and 6 inches, and a box car is shown to project from 22 to 26 inches over the rail. From a verdict and judgment for the plaintiff of $4,500, the defendant appeals.

The uncontradicted testimony of Foster, the Michigan Central brákeman, — the only eye-witness of the accident,— places Yan Dusen standing close to track 3, watching his own engine. Foster is corroborated in this by the fact that he was struck, which he could not have been had he been midway between the tracks. We must conclude that he did not notice that this car and engine were coming, for, had he done so, he would have avoided them. It is impossible to avoid the conviction that it was inattention that prevented his seeing his danger. It was a place of danger, and this should have been known to him, for he was familiar with railroads and their methods. He had seen the Central engine pass, and probably expected its return. It was not necessary that he should be between tracks 2 and 3 to mount his engine, for all the evidence shows that he could have mounted from the other side. The pile of scrap iron cuts but little, if any, figure; for Wright says that, by going a few feet further north from switch B, he could have found a convenient place to get upon bis engine. Other testimony shows the same. He, in fact, went about the same, if not a greater, distance to the place where he was killed. It was not necessary for him to be that side to give the signal, for it was Wright, and not he, who gave it. Moreover, with his engine going but five or six miles an hour, he could have safely stood at a safe distance from track 3. It being patent that the accident would not have happened but for the fact that the deceased voluntarily and unnecessarily occupied a place of great danger, nor even then but for his own inattention, there is no escape from the conviction that his negligence contributed to his death, which, under the well-settled rule, precludes a recovery. Under the evidence, the trial judge should have directed a verdict for the defendant.

The judgment will be reversed, and a new trial ordered.'

The other Justices concurred.  