4. SAME-NEGLIGENCE OF SECTION MEN-FELLOW-SERVANTS. The duty to furnish a safe place was one that could not be delegated by the defendant so as to relieve itself from responsibility, and therefore, though it may have been within the employment of the section men to remove the ice from the track, they were not fellow-servants of the deceased with respect to the performance of such duties. GRANT, J., dissenting.

5. SAME--CONTRIBUTORY NEGLIGENCE.

Whether a brakeman, in sitting upon a flat car between two tiers of logs while backing upon a side track for the purpose of making a coupling, was guilty of contributory negligence precluding a recovery for injuries sustained by being crushed between the logs on the car's leaving the track, is a question for the jury, the evidence being conflicting as to the danger of the position.

Error to Bay; Hosmer, J., presiding. Submitted June 18, 1895. Decided October 1, 1895.

Case by Margaret Balhoff, administratrix of the estate of George Balhoff, deceased, against the Michigan Central Railroad Company, to recover damages for negligently causing the death of her intestate. From a judg ment for plaintiff, defendant brings error. Affirmed.

E. A. Cooley (Henry Russel and Ashley Pond, of counsel), for appellant.

McDonell & Hall, for appellee.

HOOKER, J. The plaintiff's intestate, her husband, was killed upon defendant's railroad, under the following circumstances: He was acting as a brakeman upon a freight train, a portion of which was being backed upon a siding for the purpose of making a coupling to some cars standing thereon, after having been coupled to two flat cars loaded with logs. After making the coupling to the flat cars, the deceased sat upon one of them, between two piles of logs, and was killed by the train's leaving the track and striking another car, which caused the logs to shift and crush him. The intestate had been engaged as

brakeman upon the way freight for two months or more, and was familiar with the road. The accompanying sketch will serve to illustrate the situation:

At A and B, where the car left the track, was a depression, towards which the water ran from both north and south. There is nothing to indicate that the depression was great, and it is claimed by the defendant to have been so slight as to require a level to detect it. Towards the east side of the yard was an open ditch, parallel with the tracks, between sidings 3 and 4, and there was another between the main track and the side track on the west side of the grounds. There was a sluice, consisting of a box eight inches in diameter, which was constructed to take the water, which came down upon and between the tracks, to the ditch; said sluice being lower than, and running under, side track No. 4. The sluice was constructed in the fall of 1892 by the section men. On January 29, 1893, the snow and ice melted, and water accumulated in the low spot mentioned, covering the rails. It did not run off, because the box drain was frozen. The following night was cold, and the water froze, and a light snow fell, covering the ice. At 2 p. m. on January 30th the accident. occurred, the train being thrown from the track by reason of the ice. There was testimony that the section men did not know that the box was frozen or the track covered with ice, not having reached that place in the due course. of their daily labor, and that when they reached it they found it (i. e., the box) frozen solid, and it remained so all winter.

It is claimed by the counsel for the plaintiff that the defendant was negligent, in that it did not fill up the depression and lift the track up, so as to prevent the accumulation of water and ice, or notify its employés of the danger existing at the place, by personal notice, or by a notice posted at the place of danger. The circuit judge allowed the case to go to the jury, and the plaintiff recovered.

Several questions arise in the case, viz.:

1. Was the defendant negligent in constructing and

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maintaining its road with a depression, without informing its employés?

2. Did the intestate assume the risk, as incident to his employment?

3. Was the alleged negligence the proximate cause of the injury?

4. Was the freezing of the track due to the negligence of the section men, and therefore that of a fellow-servant? 5. Was the intestate guilty of contributory negligence?

1. The Condition of the Track: We may properly take judicial cognizance of the fact that it is impracticable to construct railroads upon a level. Indeed, most roads in this country are built upon a succession of inclines, in approximate conformity to the natural surface of the ground. We may also recognize the palpable necessity for rapid drainage of roadbeds, which is usually effected by raising the ties and track above the general surface, and the propriety of ballasting the track in such a manner as to prevent water from running across it, between the ties. In a yard where there are two or more tracks, it follows, of necessity, that water may accumulate between the tracks, and that whether provision should be made for its removal may depend upon the quantity of water likely to accumulate, and the facility with which it naturally escapes. Again, we know that during a thaw snow drifts form barriers, and that water finding its way into drains may freeze there from such cause, and this may happen to a drain that is amply large for ordinary occasions. We cannot, however, say, as a legal proposition, when a drain is necessary, or whether it is sufficient, or to what extent the railroad company should foresee the danger of water rising above the tracks and freezing, and take measures to prevent it. The rule is that the company must provide a reasonably safe track,one which, measured by the standard of good railroading as actually conducted, can be said to be reasonably safe. If such standard would require the danger of ice freezing over the track to be foreseen, then it was the duty of the company to foresee it. If good railroading, as above

interpreted, requires provision to be made to prevent such freezing, to avoid accident, then it would be negli gence to omit such provision; and the same rule must. furnish the test of the adequacy of provisions made. These are necessarily questions of fact, and cannot be determined by the court, unless the evidence is conclusive and uncontradicted, one way or the other, which is not the case here. Therefore we must say that whether the defendant in this case furnished a reasonably safe place was a question for the jury.

2. Was the Accident a Risk Incident to the Employment? We have so often held that one who is employed to work upon a railroad assumes the risks of obvious defects that it is hardly necessary to cite authorities upon the subject. The master has a right to expect the servant to be alert, and make use of his opportunities to learn the dangers of his employment; and, if ignorance of a danger is inexcusable, the employé cannot recover. And there are cases where the testimony is conclusive, and the court may say so. But the fact is not undisputed here. The intestate's actual knowledge can neither be proved nor disproved conclusively, as he is dead. All that is left is to show the surroundings, and from them we cannot say that he knew, or ought to have known, that there was a low place in the track at that point. He may have known it; we might perhaps say that he prob ably did know it; but it would still be for the jury to determine the fact.

3. Proximate Cause: It is argued that the plaintiff should not recover, because the freezing of the box was the proximate cause of the accident. No authorities are cited for such an application of the doctrine of proximate cause. The ice upon the track caused the accident, and that was caused by the thawing and freezing weather, the presence of water, the depression in the track, and the inadequate drainage under the existing conditions. All contributed to make the place unsafe; and, if the defendant can be fairly held to have been negligent in