point near the freight-depot up to near the crossing of the roadway, but space was left of sufficient width for teams to pass. Defendant's teamster had been to the freight-depot, loaded his truck, and was going south by this roadway, having reached it by the way indicated on the map by the dotted lines between tracks Nos. 5 and 6, and, when the team was fairly upon the crossing, it was struck by the engine, resulting in the killing of the deceased, injury to defendant's teamster, and the destruction of the team and truck. The deceased, at the time, was sitting on the beam of the pilot, which is next to the "cow-catcher," as it is called, with his feet hanging down over the cow-catcher. The deceased had no duty to perform while riding upon the engine. His duty consisted in attending to the switching of the tracks, getting on and off the engine for that purpose. The regular switch-engine has a step in front, upon which the switchmen stand when engaged in moving to and fro. This is for convenience and safety.

The litigation resulting from this accident is anomalous. Defendant's teamster sued the railroad company for injur ies; the company was found negligent, and judgment recovered, which was paid. The railroad company paid defendant for the loss of his team. Plaintiff sued the railroad company in the Circuit Court of the United States for the Eastern District of Michigan, claiming that the death of deceased resulted from the negligence of the company in not ringing the bell, blowing the whistle, stationing a flagman at the crossing, and in obstructing the view of the track. Judge Brown, before whom the case was tried, directed a verdict for the defendant, upon the ground that the deceased was guilty of contributory negligence. Plaintiff then brought this suit.

Several questions are raised by the record, but the plaintiff's right to recover is barred by his decedent's con

tributory negligence, rendering a determination of the
other questions unnecessary. There is no dispute about
the facts. The judge found as a fact, and so charged the
jury, that there was no testimony in the case that the
deceased was obliged to ride upon the cow-catcher, and
left it to the jury to determine whether or not this con-
stituted negligence on his part. In the absence of proof,
we cannot believe that any railroad company requires its
switchmen, or any of its employés, to ride in so danger-
ous a place. There was a safer place for him to ride.
He was neither required nor directed to ride in a position
which every person of ordinary intelligence and observa-
tion knows was the most dangerous he could have chosen.
The fact that upon switch-engines switchmen rode stand-
ing upon the platform provided for them in front of the
engine had no tendency to prove that the deceased was
justified in riding in a sitting posture upon the cow-
catcher of a road-engine; nor would the fact that switch-
men were in the habit of riding upon the cow-catcher
excuse the deceased, as between him and defendant.
the judge substantially left the jury to determine the
question of contributory negligence by the determination
of the question as to whether the deceased was riding in
the usual and ordinary place upon the engine. If switch-
men always rode there, still that fact would not take them
without the rule of contributory negligence. When a
safer place is provided, and employés choose a more dan-
gerous one, they do it at their own risk. The difference
in danger between standing on a platform of a regular
switch-engine and sitting on a cow-catcher, with one's
legs hanging over it, is apparent. In the one case the
switchman is ready to jump upon the approach of dan-
ger; in the other, considerable time must elapse before he
could recover his standing position upon the pilot beam,
and put himself in readiness to avoid danger. In the

Yet

present case, deceased was the only one upon the engine who was injured. He chose the only place in which he could have been injured, and chose a sitting instead of a standing posture. Railroad Co. v. Jones, 95 U. S. 439; Doggett v. Railroad Co., 34 Iowa, 284; Kresanowski v. Railroad Co., 18 Fed. Rep. 229.

We quote with approval the language of the Court in Railroad Co. v. Jones, as applicable to this case:

This [contributory negligence] is shown with as near an approach to a demonstration as anything short of mathematics will permit."

There was no fact in this case for the determination of the jury. The question was therefore one purely of law. It was therefore the clear duty of the court to instruct the jury to find a verdict for the defendant. It was as clearly its duty as it would be to determine the legal effect of a contract the terms of which are undisputed.

Judgment is reversed, and case remanded for a new trial, with costs of both courts.

The other Justices concurred.

ELIZABETH K. SHERWOOD V. THE CHICAGO & WEST
MICHIGAN RAILWAY COMPANY.

Negligence-Railroad companies—Damages—Injury to passenger alighting from train-Charge to jury-Special questions.

1. It is error to refuse to submit to the jury special questions, unambiguous in form, and relating to a question of fact in issue;1 citing Harrison v. Railroad Co., 79 Mich. 409.

1 See Balch v. Railroad Co., 78 Mich, 654.

2. A request for an instruction "that the running of a railroad
train beyond the usual stopping place at the station before
coming to a stand-still is not in itself negligence, nor is the
pause after it is brought to a stop, for a period necessary to
reverse the motion so as to back to the usual stopping place,
negligence," is properly modified by adding, "unless the stop
is so made and for such a length of time as to indicate that it
is an invitation to passengers to alight, and the movement back-
ward is made without warning while they are alighting in
response to such invitation."

3. The charge in this case as to the measure of damages (see opin-
ion, p. 383) is fully supported by Power v. Harlow, 57 Mich. 116;
Geveke v. Railroad Company, Id. 596.

4. A plaintiff in a negligence case is entitled to recover, as a part
of his damages, his reasonable and necessary outlays in an
attempt to be cured of the injuries resulting from the negli-
gence of the defendant.

Error to Kent. (Grove, J.) Argued June 10 and 11, 1890. Decided October 10, 1890.

Negligence case. Defendant brings error. Reversed.
The facts are stated in the opinion.

Smith, Nims, Hoyt & Erwin (M. J. Smiley, of counsel),
for appellant.

Fletcher & Wanty (R. M. Montgomery, of counsel), for plaintiff.

LONG, J. On September 4, 1888, plaintiff was a passenger on defendant's road from Benton Harbor to Watervliet, and, in alighting from the train at her destination, was seriously and permanently injured, as she claims, through the negligence of defendant's servants. This action was brought in the Kent circuit court, where, on a trial before a jury, the plaintiff was awarded a verdict and judgment for $13,388.88. Defendant brings error.

On the trial in the court below, the plaintiff's claim was that, when the train reached Watervliet, the name of the station was called by one of the trainmen; that