tion.

fendant's railroad. He instituted suit for damages in the district court. Afterwards that suit was compromised and dismissed, the defendant paying him a Original petisum of money. On the 10th day of November, 1886, plaintiff filed his original petition in this suit, in which he alleged that by the terms of the compromise of the first suit, in addition to the money consideration paid to him, defendant agreed and promised that it would thereafter, when plaintiff should ask for and accept service and employment from it as a locomotive engineer on its road, give him such employment "for whatever length of time plaintiff should desire to retain it," at the reasonable and customary rate of pay for such employment. The original and amended petition charges that on the 1st day of July, 1886, plaintiff offered himself to defendant for said employment, but the company refused to employ him. Under this state of the pleadings there was a trial and judgment for plaintiff, which, on appeal by defendant to this court was reversed. 38 Am. & Eng. R. Cas. 16. In reversing the case, Chief Justice STAYTON says: "The evidence tends to show that the promise made on compromise was to give to appelle employment during his life, but it does not show that when appellee sought employment he proposed to render service for any named period, or so long as he might live and be able to perform the services contemplated. We must take the contract as alleged in the petition to be the contract on which appellee must recover, if at all; and, looking to that, there can be no doubt that whether appellee should serve appellant, and the term of such service depended upon his own will, it is very generally, if not uniformly, held, when the term of service is left to the discretion of either party, or the term left indefinite or determinable by either party, that either may put an end to it at will, and so without cause."

Amendment.

In the district court, on the 7th day of January, 1889, plaintiff amended his petition as to the contract of employment so as to make it read, in that particular, "that defendant promised to give plaintiff employment on its road as a locomotive engineer for the period and term of the natural life of plaintiff;" in other respects, including the date of the breach of the contract, this amended petition contained substantially the same allegations that the original petition did. Among other issues, the defendant pleaded the statute of limitations of two years to the cause of action set up by the amended petition. The facts were proved to be as follows: (1) Plaintiff was injured in August, 1882, and filed a suit on May 22, 1884, which he compromised for $4,500 in money, and an agreement to be employed as an engineer for

life, to begin as soon as he was able to go to work. (2) Plaintiff was unable to work until about July 1, 1886, at which time he applied for work, and was refused. (3) Plaintiff filed his original petition herein on November 10, 1886, which is copied into the statement of facts, and shows that the cause of action therein alleged was as we have stated above. (4) That the amended petition was filed on January 7, 1889. Defendant requested the court to charge that the amended petition set up a different cause of action, which was barred by the two-years statute of limitations. The refusal of the court to give this charge is assigned as error, and is the only question in the case.

We think the amended petition sets up an essentially dif ferent contract from the one alleged in the original petition.

Amendment sets out new cause of action.

The parties and the inducement or consideration are the same, but these do not, in either instance, constitute the whole of the undertaking. The contract alleged in the amended petition is substantially the one proved upon the trial of the original petition. If the contract, as now alleged, is substantially the same that it was then, the same objections might be urged to it now that were urged then. The difficulty on the former trial was of substance, and not of form. The amendment set up a new cause of action, and the proof, with nothing to the contrary, showed that the cause of action was barred when it was first pleaded. The court having committed error in refusing the charge requested, the judgment is reversed, and the cause is remanded.

HARRISON

V.

DETROIT, LANSING & NORTHERN R. Co.

(Michigan Supreme Court, February 20, 1890.)

Fellow Servants-Engineer and Fireman-Section-Hand.-Plaintiff, a section-hand, while engaged in loading telegraph poles on a flat-car, was injured by being thrown from the car through an engine backing against it for the purpose of moving the car. Plaintiff was working under the direction of the assistant roadmaster, but the engine while engaged in moving the car, was not under the roadmaster's control. Plaintiff's evidence tended to show that if the bell had been rung, he would have been warned of the approach of the engine and might have avoided injury. Held, that the defendant was entitled to an instruction that, if the accident was caused by the negligence of the engineer and fireman in failing to ring the

bell, the plaintiff was not entitled to recover, as they were his fellow-ser

vants.

Master and Servant-Contributory Negligence-Remaining in Dangerous Position. The evidence tended to show that plaintiff continued to work notwithstanding the approach of the engine, by the direction of the assistant roadmaster. The roadmaster testified that he had no knowledge of the approach of the engine. Held, that, if the plaintiff knew of the approach of the engine and failed to notify the roadmaster thereof, or to take steps to protect himself, notwithstanding the order of the roadmaster to continue the work, he was guilty of contributory negligence which precluded a recovery.

Fellow-Servants-Assistant Roadmaster and Section Hand-Vice-Principal. An assistant roadmaster, who has charge of about 150 miles of railroad and has control of the section gangs thereon, employing and discharging the men, is not the fellow-servant of a section-hand engaged under his direction in loading telegraph poles upon a car for th epurpose of being transported from one division of the road to another by direction of the general roadmaster, but is a vice-principal of the employer.

ERROR to Circuit Court, Kent County.

Action to recover damages for personal injuries. The defendant brings error to review a judgment for the plaintiff. C. B. Lothrop and Smith & Stevens for appellant.

John A. Fairfield, (Isaac M. Turner and Birney Hoyt, of counsel), for appellee.

LONG, J.-This action is brought to recover for personal injuries sustained by the plaintiff through the claimed negli gence of the servants of the defendant. On the trial the plaintiff had verdict and judgment for $9,000.

Facts.

The plaintiff had been in the employ of the defendant company for about eight years, though for some portion of that time he had been laid off, by direction of those in charge of the works of the company. During that time, his employment had been confined to the work as a section foreman and hand under a section boss. At the time of the injuries complained of, one George Light was the defendant's assistant roadmaster of the western division, having charge of its tracks from Stanton to Big Rapids, and from Howard City to Saginaw,-a line of about 150 miles of defendant's road; Mr. Doyle being the general roadmaster. On the morning of November 11, 1887, Light, having been ordered by Doyle, the general roadmaster, to go to Cedar Lake, east of Edmore, to move some telegraph poles, ordered two section foremen,-Cushton, to whose gang plaintiff belonged, and Horton,-to take their gangs there for that purpose. Light went with them from Edmore on a hand car, and assumed charge and direction of the work. The poles were partially loaded on a flat car standing on a side track, and in loading were piled much higher on the side of the

car furthest from the pile of poles than on the other; the car being blocked up to prevent its tipping. A freight train came along on the main track from towards Edmore going eastward, when Light ordered the engine of this train to be detached for the purpose of moving the car upon which the poles were being placed to another part of the yard. The engine, on being detached, proceeded eastward beyond the switch; and, the switch being then turned, it was then backed in upon the switch towards the car upon which the plaintiff was at work, plaintiff, with two other men, being on the east end of the car, with his back towards the approaching engine, and standing on the poles about five feet above the deck of the car. Plaintiff claims that the engine was then about 60 feet from him, when he desisted from his work, and turned his head around, looked towards the approaching engine, and said to Light, who plaintiff claims was standing near the main track, and about 10 feet east of the car on which plaintiff was at work: "George, this here car will about do. She' is about level," and at the same time plaintiff grabbed hold of the poles to protect himself if the engine came back to the car, when Light replied: "Roll another pole over. What the hell are you looking at? You have lots of time. Roll them over! Roll them over!" While plaintiff and his witnesses place Light at this time some 8 or 10 feet east of the car, some other evidence puts him near the middle of it. When this order was given by Light, plaintiff resumed his work; and he testifies that he went to work because Light told him to; that Light was the boss of the gang that day. Plaintiff says that when he turned around to see, and saw the engine coming, he thought she was coming to make the switch to move the cars, and then he grabbed hold: but that when Light told him to go to work, he did the same as the rest, went to work to roll more poles over to level the car up, and did not think they were going to let the engine come back on the car until they got through. On being asked if he relied upon what Light said in that respect, he stated: "I had to do as he told me, or may be I would get the red ticket. I thought he would not let the engine come back while we were at work on it." While the plaintiff was so at work the engine was backed down against the car. Plaintiff was thrown off, and seriously, and, as it is claimed, permanently, injured, and in a condition which wholly prevents him from doing any kind of labor. It is claimed that Light took no steps to warn the plaintiff of the approach of the engine, or to prevent the engine from striking the car. Plaintiff also claims that the bell was not rung, and the jury so found; that he was listening for the bell, and, had he heard it, would have

Instructions

requested by

defendant.

taken it as a signal of danger, and protected himself. Mr. Light admits ordering the engineer to take the car upon which plaintiff and the others were at work, and move it to another part of the yard, but denies that he gave the plaintiff the order claimed; that he merely directed the men to level the poles on the car, but gave no other order until after the accident; that he stood with his back partly to the east, and at right angles to the east switch; that he saw the engine pass over the switch to the east and stop, and did not see it again until it struck the car. The defendant also contended that the bell was being rung while the engine was backing down. At the close of the testimony, counsel for defendant requested the court to instruct the jury: “(1) If you find that the injury to the plaintiff was caused by the neg-. ligence of Mr. Light, the assistant roadmaster, the plaintiff cannot recover, for the reason that the two were fellow-servants, and the master is not liable for an injury to one caused by the negligence of another." "(3) If you find that the plaintiff was ordered by Mr. Light to continue work while the engine was approaching the flat car upon which the plaintiff was at work, but at the same time the bell upon the engine was ringing and the engine was backing up, then the plaintiff was guilty of contributory negligence in failing to heed the warning of the bell; and your verdict must be for the defendant. (4) If you find that such order was given by Mr. Light, but that afterwards the bell upon the engine was rung as a warning of the approach of the engine to the flat car, then the plaintiff was guilty of contributory negligence, and cannot recover in this action. (5) If you find from the evidence that Mr. Light gave the order to the plaintiff to continue work, as the engine was backing up, but that the fact of its near approach was not known to Mr. Light when he gave the order, and was known to the plaintiff, then the plaintiff was guilty of contributory negligence in failing to notify Mr. Light of its approach, and to secure himself; and your verdict must be for the defendant. (6) If you find that Light gave the order as claimed by plaintiff, but at the time of giving it the danger from the engine was not imminent, then the giving of the order was not the proximate cause of the injury, but the proximate cause was his failure subsequently to warn the plaintiff; and for such neglect the defendant is not liable, and the plaintiff cannot recover. (7) If it was apparent to plaintiff, when he looked around to the engine, that the danger of the engine running into the flat car was then impending and imminent, then the plaintiff was guilty of negligence in obeying Light's order, and cannot recover. (8) The evidence shows that, if the bell

41 A. & E. R. Cas.-26