Niles v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

Master and Servant — Injury to Railroad Employé — Contributory Negligence. A locomotive fireman who, having been notified that a track over which he is about to run is new, and that he should be prepared to take care of himself in case of accident, voluntarily, and against the warnings of the engineer, assumes a position in front of the cab, upon the side next to an artificial embankment supporting one rail of the track, is guilty of contributory negligence, precluding a recovery for injuries sustained by the overturning of the engine upon the giving way of the embankment.

Error to Schoolcraft; Steere, J. Case by Celia Niles, administratrix of the estate of Frank Niles, deceased, against'the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, for negligently causing the death of her intestate. From a judgment for plaintiff, defendant brings error. An employé assumes the risks usually incident to his employment, and also all those that ordinary observation makes apparent. Kean v. Rolling Mills, 66 Mich. 277, and cases there cited. Disobedience of rules and instructions precludes a recovery. Lyon v. Railroad Go., 31 Mich. 429; Grand v. Railroad Co., 83 Mich. 564, 571; Brennan v. Railroad Go., 93 Mich. 156; Wilson v. Railroad Go., 94 Mich. 26; Look-wood v. Railway Go., 55 Wis. 50, 66. Where an employé unnecessarily assumes a dangerous position during the course of his employment, and suffers an injury thereby, he cannot hold his master liable. O'1 Neill v. Railway Go., 45 Iowa, 546; Martensen v. Railway-Go., 60 Iowa, 705; Brown v. Byroads, 47 Iud. 435; Wolsey v. Railroad Co., 33 Ohio St. 227; Railroad Go. v. Thomas, 51 Miss. 637; Railroad Go. v. Rush, 84 111. 570; Sinclair v. Berndt, 87 111. 174; Railroad Go. v. Sentmeyer, 92 Pa. St. 276; Sears v. Railroad Go., 53 Ga. 630; Railroad Go. v. Jones, 95 TJ. S. 439; Glover v. Scotten, 82 Mich. 373. The question of the contributory negligence of the decedent was one for the court, and should not have been submitted to the jury. Bresee v. Poioers, 80 Mich. 178; Sadowslw v. Gar Go., §4 Mich. 105. The question of contributory negligence was properly left to the jury. 1 Shear. & E. Neg. § 86; Railway Go. v.. Bayfield, 37 Mich. 211; Lake Superior Iron Go. v. Erickson, 39 Mich. 492; Swoboda v. Ward, 40 Mich. 424; Teipel v. Eilsendegen, 44 Mich. 462; Fero v. Railroad Go., 22 N. T. 209; Beisiegel v. Railroad Go., 34 N. T. 622; Ernst v. Railroad Go., 35 N. T. 9; Beers v. Railroad Go., 19 Conn. 566; Newboldv. Mead, 57 Pa. St. 487; Gardner v. Railroad Go.,, 150 U. S. 349.