I concur in the result readied by my Brother Hooker,but I cannot concur in his reasons therefor. The theory of the declaration is a defect in the original construction of the road, of which the defendant had knowledge, and the deceased had not. Upon this theory the case was tried, and submitted to the jury. The track upon which the accident happened was constructed in a basin, — of slight depth, it is true, but deep enough to permit the water to collect above the rail. It will not be seriously contended that such a construction is safe, in this latitude, — subject as it is, in winter, to sudden thaws and freezing. There is evidence that the attention of the defendant was called to this defect, and it attempted to remedy it by a sluiceway, which proved insufficient in a case of sudden thawing and freezing. Railroads must be constructed with reference to the elements in winter as well as in summer.
Counsel for plaintiff state the basis upon which they sought recovery in the following language:
“If the servant claims damages from the master for injuries received on account of defective premises, buildings, machinery, or appliances, he must allege and prove that the unfitness or defect was either known to the master, or was such that, with reasonable diligence and attention to business, he should have known of it; and, if defendant is liable in this case for the defect in its yard, it must be because it was defective when constructed, or became and remained so afterwards, under circumstances that called for knowledge on its part, arising either from the insufficient means taken to guard against danger, or the existence of the cause that produced the injury for such a length of time that it ought to have known of it.”
The closing instruction given by the court to the jury at defendant’s request is as follows:
“If the accident occurred by reason of a defect in the original plan or construction of the side track or yard, and if such side track and yard was originally constructed so as to be reasonably safe for the ordinary uses of a side track and yard, the plaintiff cannot recover.”
*620When the cause of an accident is an original defect in construction, for which the defendant is liable, or the failure to remedy a defect of which he had either actual or constructive notice, it is no defense to an action for resulting damages that it was the duty of a fellow-servant to look after the track and remove obstructions. The original defect in such a case is the proximate cause of the accident, not the neglect of the fellow-servant. In my judgment, therefore, the question of fellow-servant is not involved in the ease, and was properly excluded from the jury. The justice of this rule, as applied to the present case, appears from the fact that the section men were engaged in other work and duties upon the track over which they had charge, and had not had time to investigate this track and prevent the accident. A railroad company cannot thus shift the responsibility of its own knowledge of a defect upon its employés, in a case where it had given no speciñe instruction, nor informed them of conditions which the elements might produce. This is not the case of an obstruction suddenly placed upon the track, or of a sudden defect in the roadbed, without the fault of the defendant, and for which it is not liable unless it had had actual or constructive notice. For these reasons, I think the case was fairly and properly submitted to the jury. I cannot concur in what my brother has said upon the doctrine of fellow-servants, for reasons stated by me in Anderson v. Railroad Co., (December 24, 1895; 107 Mich.) 65 N. W. Rep. 588.