shall be permitted to operate the cages and hoisting devices in all coal mines (any coal mine) of this State.

By section 15 it is provided:

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'Every cage on which persons are carried must be fitted up with iron bars or rings in proper place, and a sufficient number to furnish a secure handhold for each person permitted to ride thereon."

That the testimony offered on the part of the plaintiff tended to show a neglect by the defendant of each of the duties defined by these two sections, is beyond controversy. It is also settled in this State that, where a statute imposes a duty upon the employer for the protection of the employé, injury from the neglect of this duty is not one of the risks assumed by the employé. See Sipes v. Starch Co., 137 Mich. 258; Murphy v. Grand Rapids Veneer Works, 142 Mich. 677; Swick v. Cement Co., 147 Mich. 467; Layzell v. J. H. Somers Coal Co., ante, 268. It is suggested that the passenger might have caught hold of the braces or trip rod or sheet iron sides to protect himself, but it is not clear that it would not have been an act of negligence on his part to have caught hold of some of these places. It certainly would have been a great inconvenience for a man of the height of deceased to have reached the trip rod, and it does not appear that the miners were accustomed as a rule to resort to these makeshifts. It was at least a question for the jury as to whether there was a neglect to comply with the statutory provision of providing rings or bars in the proper place to furnish a secure handhold.

The circuit judge seems to have been of the opinion that any fault of the fireman would be a fault of a fellowservant of the defendant, unless notice of his incompetency was brought home to the company. This view ignores the fact that the fireman was not of the class of mechanics who, under the statute, are authorized to operate hoisting engines such as these, and, this being so, the deceased did not assume the risk of his incompetency.

No notice was required to the company of his incompetency, as in his very employment the company had neglected a statutory duty.

It was also the view of the circuit judge that there is no evidence that would indicate that, had the handles been there, this accident would not have happened. It was in evidence that when the crash came all the employés of the cage were thrown violently to the floor of the cage. It was open to inference that, had handles been provided, and had they been in use, this would not have happened, and it might very well have been found by the jury that the death of this decedent might have been averted had these provisions been made. This being so, the most that can be said upon the question of proximate cause is that the presence of this rod might have been a cause of the crash, and that its presence may be said to have been the fault of the fellow-servant; but, if this be so, there were concurring acts of the fellow-servant and negligent acts of the employer in intrusting its hoisting device to one not an engineer who was running the car at great speed, and the failure to provide handles which might have enabled the deceased to avert the injury which came from the concurring fault of the coservant. The rule is that, where an injury results from the fault of the fellow-servant, concurring with that of the master, both may be liable. McDonald v. Railroad Co., 108 Mich. 7; Hayes v. Stearns & Co., 130 Mich. 287; Lockwood v. Tennant, 137 Mich. 305. To say that the proximate cause of the injury, in the absence of handholds, is something other or different from that neglect of duty, would be practically to render this statute of little value to employés. The occasion for the hand hold arises only when an accident occurs, either unforeseen or through the fault possibly of a fellow-servant. It is in this emergency that the handhold is of some value to the employé, and undoubtedly it was with the view of meeting this emergency that the legislation was enacted. It would not meet the purpose of the legislation if the courts

should say that it would be impossible to offer direct proof that had the handholds been provided the injury would not have happened, and that therefore no recovery could be had.

The judgment will be reversed, and a new trial ordered.

BLAIR, C. J., and GRANT, MOORE, and BROOKE, JJ., concurred.

WHITE v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.

RAILROADS-PERSONAL INJURIES-NEGLIGENCE-EVIDENCE-SUF

FICIENCY.

In an action against a railroad company for injuries to a brakeman by reason of a collision of two trains, evidence examined in the light most favorable to plaintiff, and held, insufficient to establish negligence on the part of defendant, and a verdict was properly directed in its favor.

Error to St. Joseph; Yaple, J. Submitted February 18, 1909. (Docket No. 93.) Decided April 30, 1909.

Case by William White against the Lake Shore & Michigan Southern Railway Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. firmed.

Richard Price, for appellant.

Dallas Boudeman, for appellee.

Af

OSTRANDER, J. Plaintiff, employed as a brakeman by the defendant, was injured on the morning of Febru

ary 23, 1901, in a collision of freight trains at White Pigeon. The collision occurred within the yard limits as fixed by the rule of defendant company. It is the claim of defendant that the crews of both trains were at the moment violating rules of the company and rules of ordinary prudence, the west-bound train in going upon the main line track without protection from trains lawfully using the track, the east-bound train in approaching the yard at an improper speed and, as no switch lights were seen in the yard, without stopping to ascertain if the road was clear. The court below was of opinion that there was no evidence to support a finding that the injury to plaintiff was the result of negligence of defendant. It is the contention of plaintiff that the testimony tends to prove that the brakeman whose duty was, it is said, to protect the west-bound freight against incoming eastbound trains, did not understand his duty, had not been instructed in the manner of its proper performance, and was therefore an incompetent and improper person, at the time, to be employed in that service, and that it also tends to prove that the trainmen in charge of the westbound freight had been notified that the east-bound train in question had been annulled. Both of these facts being established, or either of them, it is claimed that negligence of the master which contributed with negligence of fellow-servants of plaintiff to the injury and the consequent liability of defendant is also established.

As often occurs, the attempt to fix responsibility for the catastrophe is one of some difficulty. We are, however, called upon to decide whether, viewing the testimony which was produced in a light most favorable to plaintiff, questions of fact determinative of the legal liability of defendant to plaintiff in this action ought to have been submitted to the jury. It is convenient to consider events in the order of their occurrence. Freight train 551 is a regular scheduled train running from Grand Rapids to White Pigeon; thence to Elkhart. It bears the same

156 MICH.--81.

number whether on the Grand Rapids branch or on the main line. On February 22d, in its trip from Grand Rapids to White Pigeon, and because of an excessive fall of snow, a portion of the train was left on the road and the remainder was moved to White Pigeon. There, at 1:45 a. m., February 23d, the conductor and engineman of this train received the following order:

"THE LAKE SHORE & MICHIGAN SOUTHERN RY. Co. "Telegraph Train Order No. One (1). 'Superintendent's Office, White Pigeon, 223, 1901.

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"For White Pigeon, to C. and E. of No. 551. "No. five fifty No. 550 of February Twenty Third 23rd is annulled.

“A. H. S.

"Conductor and Engineer must each have a copy of this order.

"Time received, 1:45 A. M.-O. K.

"Given at 1:46 A. M.

The reason for this order may be stated here. Train No. 550, on which plaintiff was riding, is a regular freight train running from Elkhart to White Pigeon; thence to Grand Rapids. It has the same number on the main line and on the Grand Rapids branch. Compared with No. 551, it is the superior train. It is scheduled to leave Elkhart at 1:40 a. m., reaching White Pigeon at 2:50 a. m., and Grand Rapids at 10:10 a. m. If, therefore, the locomotive and crew of train No. 551 returned over the Grand Rapids branch to move the abandoned cars, they would be using the track of the division upon the time of train No. 550, since they did not expect to arrive with them at White Pigeon before 2:50 a. m. After receiving this order, train No. 551 did move the abandoned cars, arriving at White Pigeon at some time later than 4 a. m. It was there, and for the purpose of proceeding to Elkhart, made train No. 553, by the following order: