English v. Michigan Central Railroad

(after stating the facts). Section 2 of Act No. 104, Pub. Acts 1909, provides that:

“The fact that the employee may have been guilty of contributory negligence shall not bar a recovery: Provided, that the negligence of such employee was of a lesser degree than the negligence of such company, its officers, agents or employees.”

We are of opinion that it must be held that plaintiff was precluded from recovery under the statute counted *296upon, as a matter of law. Her decedent, together with Edmonds and Greenman, were charged with the duty of handling and placing the chute in a position of safety. According to all the testimony, he alone was on the west side of the chute, standing in a space from 2½ to 3 feet wide, between the chute and the post. If, as claimed by plaintiff’s witness Edmonds, he did not actually assist in placing it in the position it occupied at the time of the injury to him, he at any rate was immediately present during the entire operation. It is entirely apparent, from the testimony above quoted, that Edmonds and Greenman believed they had placed the chute far enough away from the track to escape the oncoming train. It further appears from the record that the brakeman stationed on top of the first oncoming loaded car believed that the chute was so placed. It must be obvious, we think, that plaintiff’s decedent shared in this belief, because he occupied a position of extreme danger between the chute and the post in a confined space, where he was certain to be injured in case the end of the chute projected too far toward the track. The chute was placed in position in his immediate presence, even if he did not assist in placing it, and according to the testimony of Edmonds the duty of placing it devolved as much upon him as it did upon Edmonds and Greenman. It therefore is of no importance whether he actually assisted in placing it or not.

If this unfortunate occurrence is not a pure accident, due to an excusable error in judgment on the part of the plaintiff’s decedent and his fellow servants, for which no one is responsible, it is then the result of the negligence of Greenman and Edmonds and plaintiff’s decedent, and it must be said, under the circumstances disclosed by this record, that the negligence of plaintiff’s decedent is not less than that of his fellow servants; the three being equally charged with the per*297formance of the duty claimed to have been violated. This being true, the statute forbids recovery.

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