OF ACT OF 1868. case. This, in view of the uncontradicted facts was for the court to determine. Colvin was not an employee of the railroad company. He was not a mere traveller upon the highway, passing over these tracks to reach his destination beyond the yard of APPLICABILITY the company. He was not a passenger making his way to or from the cars of the defendant by the route provided for that purpose. He was there as the employee of a shipper of freight for the purpose of delivering his employer's goods at the car into which they were to be loaded for transportation by the defendant. His position is exactly described by the statute. He was "lawfully engaged or employed on or about the roads, works, depots, and premises of a railroad company," and about a "car therein or thereon." His employment about the premises and the cars of the defendant, in connection with the delivery and shipment of his employer's goods, is as clear as though he had been an employee of the railroad company, engaged in loading freight into its cars. It is of the same nature, involves the same risks, and requires the same care on his part. The act of fourth April, 1868, puts all persons so employed upon the same ground so far as their right to recover for an injury is concerned, whether they are the employees of the railroad company or of its patrons. The work of hauling freight about the yard and cars of a railroad exposes the workman to dangers against which he must guard; and since the act of 1868 the question is not, for whom is he employed? but what is the nature of his employment? If engaged in the hazardous work of delivering freight, or loading or unloading cars, or moving them from place to place for that purpose, it is no longer material for whom the labor is being performed. A railroad company does not owe to its employed or other persons employed about its cars and yard the same degree of care that is due to the public at street crossings or places of exposure. It cannot be required to keep a watchman at every point in its own yards where an employee or a hauler of freight may have occasion to cross its tracks or sidings; and if the plaintiff below had been the teamster of the railroad company, engaged in hauling the same load to the same car, and been injured in the same manner, it would not be contended that he could recover. The act of 1868 places him in the same situation as though he had been in the employment of the defendant. He knew, or was bound to know, the uses to which the tracks were necessarily put in the business of the company. He knew that the making up of trains and the shifting of cars for purposes of loading and unloading were constantly going on in the defendant's yard. He knew that the numerous tracks to be crossed were built and used for such purposes, and it was his duty to exercise care proportionate to the dangerous character of his employment. This he made no effort to do. Under all the evidence in this case, we think the act of 1868 was an answer to the plaintiff's action. a FLAGMAN'S REPU- It was also error to admit the evidence offered to show that the flagman had the reputation of being a careless and an EVIDENCE incompetent person for the place. He may have had very bad reputation, and yet have discharged his duty CARELESSNESS. faithfully on this occasion. The question was, What did he do? How did he discharge his duty at this time? What he had done. or left undone on former occasions was wholly immaterial and irrelevant, and the only effect of the admission of the evidence objected to was to excite the prejudices of the jury against the flagman and his employer, and so indirectly and improperly impeach his credit and injure the defendant. NEGLIGENCE. The second point submitted by the defendant below should have been affirmed without qualification. The proposition PLAINTIFF'S that the contributory negligence of the plaintiff is all CONTRIBUTORY answer to his action to recover damages for an injury is too well settled to require the citation of authorities. If, then, as the defendant below alleged, and as the overwhelming balance of the testimony shows, the flagman signaled Colvin, as he was leaving Water street, to stop, and, in disregard of the signals, he continued to urge his team forward upon the tracks of the company, and was injured, he was guilty of contributory negligence, and could not recover. But under the view we have taken of the act of 1868, the discussion of the other questions involved becomes unimportant. Judgment reversed. Evidence of Flagman's Negligence on Previous Occasion.-In Warner v. N. Y. Cent., etc., R. Co., 44 N. Y. 465, it was held, that, in an action against a railroad company to recover damages for an injury occasioned by collision at a crossing, evidence of the intoxication of the flagman there stationed on previous occasions, is immaterial, the issue being confined to the question of negligence at the time of the collision. Leonard, C., said: "The flagman was proved to have omitted to give the usual signal when a train was approaching, and to have been intoxicated when he ought to have performed that duty on this occasion. The facts necessary to determine the question of negligence, arising from the conduct of the flagman at the time when this accident occurred, were before the jury. Had he exhibited the customary signal, no negligence would have been predicated upon his intoxication. His previous habits of intemperance had nothing to do with the case. If the signal was omitted, the negligence was the same, whether the fireman was drunk or sober. His neglect on the former occasion, or his former intemperate habits, would not be sufficient to create negligence, or be any evidence of it, when this accident happened." STRAUGH v. DETROIT, LANSING AND NORTHERN R. Co. (Advance Case, Michigan. May 5, 1887.) In an action for injuries caused by collision with a train while plaintiff was crossing a railroad, where the track was in plain view for so great a distance that no one could fail to see the approach of the cars who paid the slightest attention to what he was about, the trial court properly took the case from the jury, on the ground of contributory negligence. ERROR to circuit court, Ingham county. Action by Bernard Straugh, to recover damages for personal injuries sustained while crossing the defendant company's railroad track. The trial court directed a verdict for defendant, and plaintiff brings error. Huntington & Henderson for appellant. CAMPBELL, C. J.-The court below took this case from the jury, on the ground that the conduct of plaintiff in crossing the railroad under the circumstances was an act of manifest and unquestionable recklessness. The facts in our view fully sustain this ruling. The track was in plain view for a distance so great that no one could fail to see the approach of the cars who paid the slightest attention to what he was about. No person has a right to endanger his own safety, or that of those upon a railway train, by attempting to cross the track in plain view of the danger. The judgment should be affirmed. CHAMPLIN J., concurred. MORSE, J. (dissenting.) The plaintiff brought suit to recover damages for injuries to his sleigh and himself, occasioned by a train of defendant, on the twenty-fifth day of January, 1883, at a highway crossing between Delta & Lansing, and about three miles west of the latter city. The negligence of defendant averred in the plaintiff's declaration was the failure to ring a bell or sound a whistle in approaching the crossing. At the close of the testimony upon the part of the plaintiff the circuit judge directed a verdict for the defendant, on the ground that the plaintiff was in fault in not taking the means that an ordinary prudent man would have taken to ascertain whether there was a train coming before attempting to make the crossing. The plaintiff is a butcher, residing in the city of Lansing. On the day in question, he was out in the country procuring stock for his business. He was driving two horses, attached to a light pair of bobs, with a bare light box; the runners were about a foot or thirteen inches high, and the height of the box about a foot. The seat was a slight one, resting on the box and in front. There was a rack over the box, but the space in front of the driver and at his side was open. He had 60 or 70 chickens and one sheep in the sleigh. He approached the crossing from the west, about 10 o'clock P.M. For about 60 rods the road runs parallel to and quite near the railroad track. At the crossing it takes a square, abrupt turn, and passes over the railroad at right angles. On the north side of the road, and nearly opposite the turn of the highway to cross the track, stands the house of William Covert. The plaintiff testifies that there was a heavy fall of snow upon the ground, from a foot and a half to two feet in depth. It was very cold, and he was bundled up,-had a big sheep-skin coat on, a cap over his head, but nothing around his ears. He noticed the light in Covert's house. When the horses began to turn, he stopped them. The chickens were breathing hard, so he took a stick and poked them back. He looked down the track both ways; could see nothing, and heard nothing. He then drove on; and, when the head of the horses came onto the track, he saw the head-light of the train. It was impossible for him to pull back, or turn around, so he tried to get across; but before he could do so the locomotive struck the sleigh, lifted it up, knocked the horses down, the tongue broke, and he was pulled over the dash-board. He fell so near the track that he could not, and dare not, move until the train passed. The horses ran home. Plaintiff fell upon the south side of the railroad track. It was a moonlight night. It was conceded, for the purposes of the trial, that no bell was rung or whistle sounded for this crossing as shown by the testimony of plaintiff and other witnesses. The fence along the railroad track was an ordinary board fence, between four and five feet high, there being in some places four boards and in others five, and a board cap on top, setting on an incline. The posts were split, and of cedar. The witnesses testified to the effect that a person sitting in a sleigh just at the corner of this turn in the highway would have his view of the track obstructed by the corner post and the fence. This obstruction covered a space varying, in the opinion of the witnesses, from four feet and upward. One witness thought that if a person sitting in a sleigh opposite the corner of the fence in the highway should lean forward or backward two feet, he could have seen a head-light of an approaching train for 70 or 80 rods, or more, and that this was the only spot in the road where the vision of the head-light would be obstructed. The testimony showed a cut in the railroad for the first 28 rods west of the crossing of about 3 feet, then a fill for the next 40 rods of 5 feet in its highest point, then 14 rods of 4 feet cut, followed by a fill of 11 feet for 62 rods, then a cut of 10 feet for a distance of 41 rods, followed by a cut of 3 feet for 55 rods. It is contended that the plaintiff could not have looked, as he testifies he did, without seeing the head-light of this freight train which was approaching from the west. He swears, however, that he stopped his team, and looked both ways along the track; he listened, he heard and saw nothing. It is not the province of this court, in my opinion, or of the trial court, to pass upon the truth or falsity of the testimony of a witness in a case at law. The credibility and the weight of testimony is for the jury. If there is absolutely no evidence tending to show a fact to be determined, or the uncontradicted and undisputed testimony establishes such fact beyond cavil or question, then the court may so instruct the jury; but if there is evidence to consider, and such evidence is to be questioned, then a jury must deal with it, and decide upon it. It is argued that the plaintiff, under the circumstances, must have seen the head-light of the locomotive, if he looked at all; or that, if he did not look, he did not stop in the right place to look, or did not take pains to lift his head sufficiently high to raise his vision above the board fence; and that an ordinarily prudent man, if in a place where his vision was obscured by the post at the corner of the fence, would have leaned sufficiently forward or backward to have gained an unobstructed view, or would have glanced between the boards. The main argument, however, is directed against the truth of the plaintiff's statement that he stopped and looked. As already shown, this cannot be considered here. And I do not think that a man must strain his eyes for a mile or so before he reaches a railroad track for sight of a headlight, or keep his mind or ears for that distance directed toward a possibly approaching train. It is enough if the thought and caution comes to the mind before the track is attempted to be crossed, and time is taken to look and listen. This was a freight train. Unlike a regular passenger train, its goings and comings were not familiar to the plaintiff, nor was the time of its crossing at all uniform. Within a few feet, about 30, he stopped, and looked and listened. He stopped long enough to hear, but heard no bell or whistle. He saw nothing. It was not necessary that he should stand up in his sleigh; probably not one man in a hundred would have done so. The very fact that he knew the crossing and its surroundings well would have a tendency when he glanced down the track and saw nothing, to disarm any suspicion that the fence or anything else was obstructing his vision; and the fact that he heard no bell, whistle, or other sound of an approach |