by brakemen -Defective draw-bars..

It is further contended by defendant that the accident was one of the ordinary risks of plaintiff's employment, and was liable to happen in coupling any cars. Some eviRisks assumed dence to which our attention is called, given by plaintiff on his cross-examination, standing alone, would give some color to this claim, but, read in connection with the other testimony, shows that it is only when the cars are propelled against each other with great force that the dead-woods are liable to come together, and thus endanger the brakeman making the coupling. The evidence is that when the moving cars are backed upon the stationary car at a slow rate of speed, or at a speed ordinarily used in making couplings, the bumpers or draw-heads will take the whole shock, and the dead-woods will not meet, but there will be a space between them of from two to eight inches. Doubtless, the danger of injury arising from the engineer's backing the train upon the stationary car with great force is a risk which the brakeman must assume, and for which the corporation would not be responsible; but that was not the risk to which the plaintiff was exposed. The evidence is that the train was backing up slowly, and at a rate of speed that would not have brought the dead-woods in contact if the bumper had been in order. Because the bumper of the moving car was defective, and hung lower than it should have done, it passed under the bumper of the stationary car, and permitted the dead-woods to come together. The defective bumper was thus shown to have been the proximate cause of the accident. It was literally the causa causans. Its immediate effect was to permit the dead-woods of the two cars to come together, and the plaintiff was from that cause exposed to a danger not within the ordinary risks of his employment. This result was traceable directly to the defendant's failure to provide the moving car with bumpers in good order; and, unless the proof showed (which it did not) that plaintiff himself was in some way responsible for that condition of the car, the negligence of the defendant was established.

The question as to the plaintiff's contributory negligence was, I think, one of fact for the jury. He testified that, when

Plaintiff's contributory negligence.

the cars were four or five feet apart, he saw that the bumper of the moving car was lower than the bumper of the stationary car. It does not appear that he observed that it would pass under the bumper of the stationary car, or that there was any danger that the dead-woods would come together. On the contrary, he appears to have thought that the coupling could be made with the straight link that was in the draw-head. He had a

right to assume that fact, and that the coupling appliances were in good order. It was only at the moment that the cars were about to collide that he discovered his error. The court cannot affirm that for such an error of judgment, induced, as it was, to some extent, by defendant's neglect, he is to be held to have been careless. Under such circumstances, when the whole transaction is the occurrence of a moment, a man is not to be held responsible if he errs as to the estimate of the danger that confronts him. If he acts the part of a prudent man, willing to and intending to perform the duty to which he has been assigned, he has done all that the law demands of him and whether he acted such a part under the circumstances of this case was for the jury to determine. The order of the general term should be reversed, and a new trial granted, with costs to abide event.

All concur, except FOLLETT, C. J., and POTTER, J., dissenting, and HAIGHT, J., not voting.

Master and Servant-Obligation of Employer to Inspect Cars of Other Com⚫ panies.-See note, 33 Am. & Eng. R. Cas. 358; Gottlieb v. New York, L. E. & W. R. Co. (N. Y.), 24 Id. 421; Keith v. New Haven & N. R. Co. (Mass.), 23 Id. 421; note, 21 Id. 561; Mackin v. Boston & A. R. Co. (Mass.), 15 Id. 196. See also Simms v. South Carolina R. Co. (S. Car.), 31 Id. 199, note, 204. Same—Responsibility of Employer for Defective Coupling Apparatus.-See Reed v. Burlington, C. R. & N. R. Co. (Iowa), 31 Am. & Eng. R. Cas. 190; Tabler v. Hannibal & St. J. R. Co. (Mo.), 31 Id. 185; Atchison T. & S. F. R. Co. v. Wagner (Kan.), 21 Id. 637, note, 642; Houston & T. C. R. Co. v. Maddox (Tex.), 21 Id. 625; Lawless v. Connecticut Riv. R. Co. (Mass.), 18 Id. 96; Tierney v. Burlington, C. R. & N. R. Co. (Minn.), 15 Id. 290; Whitman v. Wisconsin & M. R. Co. (Wis.), 12 Id. 214; Skellenger v. Chicago & N. W. R. Co. (Iowa), 12 Id. 206; King v. Ohio & M. R. Co. (C. C.), 8 Id. 119; Smith v. Potter (Mich.), 2 Id. 140; note, 1 Id. 107.

Defective Coupling Apparatus Contributory Negligence of Brakeman.The conductor of a train received an order to forward a “bad-order” car to the repair shops, and handed the order to plaintiff, the middle brakeman of his train, who went to the rear of the train to give a duplicate copy of the order to the rear brakeman. The rear brakeman and plaintiff walked down to the bad-order car, the rear brakeman getting a chain with which to chain it to the way car, the rear car of the train. When the way car was in position to have the bad-order car chained to it, plaintiff offered to help to fasten the chain to the king-bolt of the bad-order car. The draw-bar of the bad-order car was entirely gone, and this was apparent at the slightest glance. When the way car and the bad-order car came together, by reason of the absence of a draw-bar from the latter, the space between them was so small as to crush any person who might happen to be there. At another station while the train was being side-tracked, the bad-order car became detached. Plaintiff assisted in pushing it towards the train, when, noticing that the chain which had connected the way car to the bad-order car and which had been put on the dead-woods of the bad-order car, dropping towards the ground he stepped in front of the bad-order car to pick it up. He did not look to see how far distant the bad-order car was from the way car, and just as he rose with the chain in his hand, he was caught between the way car and the bad-order car. Plaintiff knew that there was some defect in the coupling apparatus, but did not know its exact nature. Held,

that as plaintiff by the exercise of care might have known the proximity of the cars and might have learned the danger to which he was exposed from the defective coupling apparatus, he was guilty of contributory negligence and could not recover. Rebelsky v. Chicago & N. W. R. Co., Iowa Sup. Ct., Jan. 23, 1890. GIVEN, J., who delivered the opinion of the court, said:"To enable the plaintiff to recover, he must show that the defendant was guilty of negligence in one or both of the respects charged in the petition; that the negligence charged, of which the defe dant was guilty, was the proximate cause of his being injured to his damage; and that he was free from negligence contributing to such injury. If the facts are such that but one conclusion can reasonably be drawn from them, it is the province of the court to determine that conclusion. But, if different minds might reasonably reach different conclusions from them, the parties are entitled to have the question determined by the jury.' Whitsett v. Chicago, R. I. & P. R. Co., 67 Iowa 159, 22 Am. & Eng. Corp. Cas. 336, and cases therein cited. There being no counter or conflicting testimony, we are to take that introduced as true, and say whether different minds might reasonably reach different conclusions therefrom. That the defendant might haul its disabled car from where it was to the shops for repairs at a proper time, and in a proper manner, is not questioned; nor is it questioned but that it was proper to haul it in day time, and in a freight train. The draw-bar being out, a chain was used in attaching the bad-order car to the rear of the train. There is no testimony to show that it should have been attached elsewhere in the train, or that there is any better or safer appliance known for making couplings in such cases than a chain such as was used. There is nothing to show how the coupling was made, or that it could have been in any different way. The fact that the chain came loose indicates that the attachment was not perfect, but there is nothing to show that it could have been more so. The chain was used to meet an emergency; and, for aught that appears, it was the best known appliance, and was used in the best known way to meet that emergency. The defendant had notified the plaintiff that it was a bad-order car. He knew that a chain was used in attaching it, and consequently must have known that the usual appliance for coupling was out of order. The absence of the draw-bar was obvious, and, with his attention called to it, as it had been, by the order and the use of the chain, could not have escaped his notice when he went in to pick up the chain, if he had exercised the slighest care. Neither the engineer of this train, nor the man that was pushing the disabled car, had any reason to expect that the plaintiff was going between the cars when and as he did. and therefore had no reason to give signals that the train was to be stopped, or that the bad-order car was being pushed. The plaintiff knew the badorder car was moving towards the train, and that the train might be stopped so they would come together. By the exercise of care he would have known that the train had stopped, and consequently the danger. The only reasonable conclusion that can be drawn from this testimony is that it does not even tend to show that the defendant was negligent in either of the respects charged, and fails to show that the plaintiff was free from negligence on his part.'

KARRER

υ.

DETROIT, GRAND HAVEN & MILWAUKEE R. Co.

(76 Mich. 400.)

Master and Servant-Coupling-Defective Draw-Bar-Contributory Negli gence. Plaintiff, an experienced head brakeman, was injured while attempting to couple a car. He testified that in making the coupling, he had just inserted a link in the draw-bar of the moving car, and as he turned he was close by the other car, and that he had no time to do anything but make the coupling as well as he could. He attempted to raise with his knee the draw-bar of the stationary car, which on account of its defective condition had fallen down, but it did not come up high enough, struck the lower part of the draw-bar on the moving car, slipped up and hurt his finger. It appeared from his testimony that he saw the defect in the draw-bar complained of the instant he looked at it, and that, if he had looked around before the cars came together, he could have stepped out from between them. A rule of the company required employes to satisfy themselves that machinery, tools, cars, etc., which they were required to use in the performance of their duties, were in safe working order. The plaintiff was not acting under the orders of any other person at the time of the injury. Held, that he was guilty of contributory negligence which barred a recovery.

ON exceptions from Circuit Court, Shiawassee County. Action for personal injuries. The defendant excepts to a judgment for the plaintiff.

iff.

Matthew Bush, fr., (Lyon & Hackleman, of counsel,) for plaint

E. W. Meddaugh for defendant.

Facts.

CAMPBELL, J.-Plaintiff was an experienced head brakeman on a freight train on defendant's road. On February 1, 1887, his train arrived at Holly, late in the afternoon, where he was directed to take a car standing on a side track, and connect it with his train. The engine was moved to the side track, and backed, under his direction, and subject to his orders, so as to bring one of the cars near the one to be attached. He put a link in the draw-bar of the car in motion, and walked back with it towards the standing car. While attempting to make the coupling his fingers were crushed. He claims it was the fault of the defendant, because of a defective draw-bar in the standing car. The cause of grievance stated in the declaration is as follows: "The defect complained of consisted in that the draw-bar and its appliances had become so old and worn out by long use without

repairs that such draw-bar dropped, and hung down about six inches lower than where it would be if in a proper state of repair, and in its proper position. That such defect of said draw-bar and its appliances was obvious and manifest, and could have been readily seen by defendant had it taken the trouble to have such car properly inspected, which it had not, or had it used reasonable care and diligence in the premises. That, owing to the darkness and snow, plaintiff could not and did not see the condition of said draw-bar as he approached it, and did not realize its condition until he was injured as aforesaid. That the draw-bar of the other car-the one attached to the train, and which contained the coupling link taken hold of by plaintiff was in good condition. That the cars to be coupled were of equal height, and the draw-bars to them, had they been in good condition, would have been upon a level with each other; but, owing to the bad and defective condition of the draw-bar and its appliances of the car the plaintiff was trying to couple to the train, the draw-bar of such car was much lower than that of the car to which it was to be attached, and when they came together the upper projecting edge of the defective drawbar meeting the lower edge of the draw-bar to the other car, glanced upward and inward, catching and crushing plaintiff's fingers, as aforesaid," etc.

The case on the trial was peculiar in this: that every other witness testified that the draw-bar complained of was not down or defective; and several witnesses agree that plaintiff stated almost immediately after the accident that no one was to blame but himself, and that the trouble arose from his glove sticking to the link, and his foot slipping. But while a jury may have the power to disregard testimony which agrees and believe what is contradicted, the verdict in the present case is directly against the charge of the court, and is not creditable to an intelligent jury. We are more concerned, however, with whether any case was made out, and whether any should have been left to the jury. The plaintiff's testimony for himself was all that was put in by him. According to that he was head brakeman, and doing the switching for his train. While at the depot, he was told to hitch onto the car in question, which was on a side track, and which he says he never examined, and never saw before, or since. to his knowledge. He does not swear positively what kind of a car it was, but thinks it was a peddler car. "The order was to lift a car to take to Fenton; and, if that was the case, it would be what we call a local worker.' I wouldn't be positive as to that." When told to hitch on he was prob ably from 25 to 30 rods from the car. "I uncoupled the en