Lewis v. Wolverine Coal Co.

(after stating the facts). We are of opinion that in dealing with the last three grounds of alleged negligence the learned circuit judge reached a proper conclusion. The sole question remaining, therefore, is whether he committed error in submitting the case to the jury upon the first ground; i. e., that it was negligence on the part of the defendant to use an unusually wide car. We are convinced that as to this aspect of the case the learned trial judge reached an erroneous conclusion.

The situation presented by this record is peculiar, *573in that the plaintiff himself, a man of maturity, and who had most ample experience, not only had power to reject a car which was unfit for loading, but himself controlled every movement of the car. Furthermore, he himself set the car in motion at the identical moment he received his injury. When he stooped to release the block he noticed the proximity of the car to the post, for he testified:

“I got off the car to knock the block out, and the car was so wide I could not reach the block.”

The method of blocking and unblocking the car to hold it as. required was of the plaintiff’s own selection. The cars were provided with brakes, and it must be presumed that they could have been used for that purpose. Plaintiff’s testimony to the effect that two-thirds of them would not work must be disregarded in the light of the fact that he testified that no attempt was made to hold the car which caused the injury by such means. The conclusion is irresistible that in knocking the block out from under the hind wheels of the car with his body in such a position that it would be caught by the caF which would instantly start when released, as he well knew, plaintiff was guilty of such contributory negligence as would absolutely preclude his recovery. The charge of the court upon which recovery is predicated permitted the jury to find that there was a “customary and' usual width of cars,” whereas the proof conclusively demonstrated that there was no such customary or usual width, that the cars varied in width from 7 feet 6 inches to 10 feet 3 inches, and that they varied in width from car to car, and the evidence further conclusively established the fact that the car which caused the injury was not among the widest of those commonly in use. In the face of such positive proof, it was improper to permit the jury to find, as a fact, that there was a customary and usual width of cars, *574and that the one which caused the injury was one unusually wide.

But, even if the car in question had been unusually wide, if such unusual width was such as to make it improper to load, it should have been rejected by the plaintiff. Not having so rejected it, but having loaded it, and being, as he testified; aware of its unusual width, when he went to remove the block for the last time, he must be held to have assumed the risk of that act, the danger of which was or should have been entirely apparent to him.

We believe the citation of authorities to sustain the conclusions here reached is unnecessary.

The judgment is reversed, and there will be no new trial.