Salabrin v. Ann Arbor Railroad , 194 Mich. 458 ( 1916 )

Brooke, J.

(after stating the facts). 1. Under the charge of the court which presented that question fairly to the jury, we must assume that the jury determined that the plaintiff undertook the journey from the point on the track where he was at work to the village of Dundee at the express command of the foreman, and for the purpose of obtaining a “jack.” As no motion was made for a new trial upon the ground that the verdict was against the weight of testimony, that question is now foreclosed, and we must now assume that the plaintiff’s version of the transaction is the truth. On behalf of defendant, however, it is contended that, even assuming the plaintiff to have told the truth with regard to the inception of the journey, it is uncontradicted upon this record that the quitting time was 5 o’clock. It is therefore urged that when 5 o’clock came plaintiff and his companions were at liberty to go in any direction their several fancies might dictate, and that if plaintiff and his companions chose rather to wait for the departure of the hand car from Dundee in order to secure a ride from that point to Lulu, where their sleeping and living car was located, it should be held that in so doing they were acting for their own pleasure and convenience, and not as employees of the defendant company. We are unable to agree with this contention. It seems to us that it would make no difference whether the journey was undertaken before or after the hour when plaintiff usually quit his daily labor, provided it was so undertaken at the command of the master through the foreman and for the benefit of the master. If, as plaintiff testifies, the foreman instructed him to accompany the party for the purpose of obtaining the “jack,” and he remained with the hand car after obtaining the “jack” at the command of his foreman until the return of the party from Dundee, and then entered upon the return trip with the rest of the party, we think it should be held that at the moment of collision he sustained the relation of servant to the defendant company as master. The case of Winnie v. Railway Co., 160 Mich. 334 (125 N. W. 351), relied upon by defendant is not controlling.

2. On this branch of the case defendant relies upon the statute (Act No. 77 of the Public Acts of 1913, 2 Comp. Laws 1915, §§ 8378-8380), which provides that all locomotives shall be equipped with lights of a certain character. Section 2 of the act contains the following proviso:

_ “Provided, That should a headlight on any locomotive become defective when being used in transportation, it shall not be considered a violation of the provisions of this act to continue the operation of said locomotive to its destination.”

In this connection it is said on behalf of defendant that the record shows that the chimney of the headlight was broken at Ann Arbor, and that therefore the engine was being operated to its destination in strict conformity with the proviso of the statute. There are, it seems to us, two answers to this contention. In the first place, defendant failed to show that the train, a way freight was not made up at Ann Arbor. If the train started at Ann Arbor, and so far as this record discloses it may have done so, the operation of the locomotive between Ann Arbor and Toledo without a headlight could certainly not be held to fall within the proviso of section 2 of the statute. Secondly, the statute is penal in character; and, while the operation of a locomotive without a headlight, under circumstances falling within the proviso of section 2, would relieve the defendant company of the penalty provided in the act, such operation might still be highly negligent on the part of the defendant. It appeared from the testimony of the fireman that there was a switch engine at Ann Arbor, and that said switch engine had a headlight with a chimney. He said:

“We did not have time to take that chimney because we had orders to go on.”

Under the circumstances as disclosed by the record in this case, we are of opinion that the operation of the locomotive after dark without a headlight from Ann Arbor to Toledo, a distance of 47 miles, was, as the learned circuit judge charged the jury, negligent as a matter of law.

3. Under this head defendant claims that, even though the plaintiff was at the time of the accident in the employ of the defendant company, the company owed him no duty in respect to the headlight. This contention is based upon our holding in the case of Lepara v. Railroad Co., 166 Mich. 373 (130 N. W. 668, 40 L. R. A. [N. S.] 1105), where we held that the company owed no duty to a section hand to sound the customary crossing whistle. We do not think that the use of a headlight, whether prescribed by statute or demanded by practice in good railroading, should be held to be for the benefit of the public only, and not for the benefit of the employees of the railroads. Such employees are obliged constantly to be upon the right of way and in the yards of the railroad companies, and after dark the use of a headlight is to them one of the highest guaranties of safety to life and limb.

4. We have so recently examined this question that we content ourselves with reference to the late case of Holmberg v. Railway Co., 188 Mich. 605 (155 N. W. 504).

Judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.