(dissenting). The plaintiff entered the service of the defendant as a brakeman on March 22, 1892, having previously had considerable experience in that line of work on other roads. He worked upon freight trains 9 days in March and 19 days in April, and on freight and mixed trains 29 days in May, running between Detroit, Pontiac, Holly, Owosso, and other western points, including Grand Rapids. In the performance of his duties as a brakeman, he rode on the tops of box cars coming into all stations, and in going to and fro between Milwaukee Junction and the station at Detroit. He went to Pontiac in June, and while there worked on the Orchard Lake Branch. He returned to Detroit in August, and worked on passenger trains between Detroit and Grand Haven during that month, and from September 1st to September 14th. On September 15th he left Detroit for Holly on a *191freight train, and returned to Detroit on the morning of the 16th, when he went in on the “ East Y,” so called, and assisted in picking up 23 cars. These cars were taken off the east Y at 4:50 a. m., standard time, as the record shows. On the evening of the 16th of September he left Detroit for Owosso, with a train, and returned on the -evening of the 17th. This train arrived at Milwaukee -Junction at about 8:30 p. m. The conductor'learned that there were some cars on the east Y to be taken to Detroit, .and the train pulled down to Milwaukee avenue. The engine and two cars were cut off the train, and pulled oyer the switch that leads off the main track to the east Y. Plaintiff turned the switch, went back on the east side of the track, 4 or 5 feet distant from the east rail, giving his signals, with his lantern, to the fireman, as the track upon which the coupling was to be made was on a -curve. He continued to signal the engine back until it reached the cars that were to be picked up on this Y. The coupling was made, the conductor gave the signal to go ahead, and the engineer pulled the cars out on the main line. The plaintiff, instead of getting into the cab of the engine, or walking to the switch, climbed on the ladder on the side of the car, and, as the train pulled out over the Y, came in contact with a telegraph pole that stood on the east side of the Y track, and about 4 feet distant from the track, and sustained the injuries complained of.
This pole was in the same position as when the plaintiff -entered the defendant’s employ, and had been in the same place for many years. The east Y was used to store cars that came off the different roads, destined for Detroit. It had been so used for a good many years, and no one had ever come in contact with the pole before, although trainmen had often ridden by it on the sides of cars, in the night-time as well as in the daytime. The plaintiff had frequently assisted in picking up and leaving cars at Milwaukee Junction, and in so doing had passed and repassed the pole in question. He passed the telegraph pole at least '50 times on trains before his injury. He had been in *192on the east Y at least 10 times before, and had assisted each time in picking up cars on the Y. It is true that he denied ever having seen the pole, or that he had ever been in on the Y before; but the defendant’s witnesses, corroborated as they were by the daily records kept by the conductors and the car-checkers, and by the books of the train-master, from which the plaintiff’s pay-checks were made, which plaintiff admitted to be correct, made, as they were, by different persons in different departments and for different, purposes, and all agreeing, compel the conclusion that the plaintiff was on the Y as the defendant’s witnesses testified, and had assisted in picking up 94 cars there before he was hurt. Thus it appears that the plaintiff had been in the defendant’s service for nearly six months, and a considerable part of his time had been spent on freight trains running between Detroit, Grand Rapids, and intermediate points. The evidence shows that, in doing his work, he had stopped at all, or nearly all, of the stations along the defendant’s line of road, to take on and put off cars, and that, in doing his work at the several stations, he must have become familiar with the structures, not only along the line of the main track, but on the side tracks and in the yards and stations of the line, if he was attentive to his surroundings, as it was his legal duty to be.
If the plaintiff could not, in six months, have made himself familiar with the location of structures such as awnings, freight platforms, cattle-chutes, coal-bins, side tracks, Y’s, telegraph poles, and other necessary structures adjacent to the tracks and Y’s at stations and in yards along the entire line of the defendant’s road, such knowledge can never be presumed from lapse of time, coupled with opportunity to acquire it. The rules of the company, of which he had a copy, required him to examine all machinery, tools, cars, engines, and tracks before exposing himself to danger, and to take sufficient time to make such examination. There is no evidence in this record to show that the pole in question was nearer the track than many others, or than other structures in defendant’s yards and *193stations along its entire line. This casualty occurred on a side or Y track in the defendant’s freight yard, and with reference to such tracks a different duty to the servant devolves upon the master than that with reference to the main track, as we have held. Michigan Central R. Co. v. Austin, 40 Mich. 250; Batterson v. Railway Co., 53 Mich. 125; Heivitt v. Railroad Co., 67 Mich. 61; O’Donnell v. Railway Co., 89 Mich. 174. We think that the plaintiff’s opportunities of knowledge of this pole were such that he must be held to have known of its existence and location. The decisions of courts in diffei*ent States are not harmonious in applying the rule of assumed risks. Different courts have reached different results on the same state of facts. The cases in this State, however, are quite uniform, and we think that this case is clearly within the holdings of this court in Illick v. Railroad Co., 67 Mich. 632; Pennington v. Railway Co., 90 Mich. 505; Ragon v. Railway Co., 97 Mich. 265 (37 Am. St. Rep. 336); and Manning v. Railway Co., 105 Mich. 260.
In Illick v. Railroad Co., supra, the negligence charged was that the bridge was too narrow, and that, by reason thereof, a brakeman was injured by coming in contact with the side of the bridge while in the discharge of his duty. He had passed over the bridge a good many times, but there was no evidence that he knew just what the space was between the side of the car and the bridge. Held, that he assumed the risk. Pennington v. Raihvay Co., supra, was a similar case. The deceased was a brakeman engaged in switching cars, and was caught between the side of a car and a building only 13 inches distant, while descending on the side of a car. He had done work in the yard before, and in that way had become familiar with the building, but there was* no evidence that he knew the exact distance between the side of the car and the building. Held, that he assumed the risk. In Ragon v. Railway Co., supra, a brakeman was injured in making a coupling on a side track that was not properly ballasted. The plaintiff testified that he *194did not know of the hole. The evidence, however, showed that he had been in the employ of the defendant for some time, and that he had passed and repassed the yard and switch in question on the main track. Held, that he assumed the risk. It is difficult to distinguish this case, in principle and in its facts, from the present case. If a .brakeman is negligent in failing to see a hole in a side track, while performing work on the main track, it is difficult to see why he should not be held negligent in failing to see a telegraph pole by the side of the track, that he had passed and repassed frequently, as in this case. In Manning v. Railway Co., supra, the negligence charged was that a tree was permitted to stand too close to the track. The brakeman who was killed commenced working upon that particular train that morning. There was no evidence that he knew, or that he had had an opportunity to learn, the exact distance between the tree and the side of the car. It was held that he assumed the risk.
The following cases, decided by the courts of other States, sustain the view here taken: In Lovejoy v. Railroad Co., 125 Mass. 79 (28 Am. Rep. 206), an engineer was injured by coming in contact with a signal post at the side of the track, 3 feet and 8 inches distant therefrom, while leaning out of the engine, and looking back to get a signal from the conductor. It appeared that he knew of the signal posts along the line, but that he had not noticed the one that caused his injuries. Held, that he assumed the risk. In Fisk v. Railroad Co., 158 Mass. 238, a freight brakeman was injured by coming in contact with a wooden awning projecting from a passenger station. He had worked on that line of road for two years. He was acquainted with the station, and knew that there was an awning there. On a dark and rainy night he started to go up on the side ladder of a freight car that had come from another railroad, and in passing the station struck against the awning. The car was higher than others. He had ridden on such cars before. Held, that he assumed *195the risk. In Thain v. Railroad Co., 161 Mass. 353, an engineer was carried against a wooden post standing 4 feet from the track and 2 feet from the tender beam, where he was at the time. The post had been there a week, and he had passed it daily, but did not know that it was there. The court said:
“ It is necessary for railroad companies to put up structures near enough to their tracks for it to be possible for persons upon the trains to come in contact with them. * * * A company is not bound to give warning of every such structure to every person employed upon its trains. There must be some point within the limit which it is possible for a man on a train to reach at which the railroad company has a right to build without notice, and to assume that those on the trains will keep out of the way. Every one knows that there is danger as soon as he gets outside of the line of the train, when it is in motion.”
In Goodes v. Railroad Co., 162 Mass. 287, a brakeman struck against a switch-stand that was close to the track, and was knocked off the car and fatally injured, while uncoupling freight cars at night. He had been working for the defendant nearly three months, had worked as a brakeman on another railroad for several months previously, knew his business, and was competent and intelligent. He had passed over and by the switch, both by day and by night. Held, that he assumed the risk. In Austin v. Railroad Co., 164 Mass. 282, a brakeman struck a gatepost near the track, and was injured. He had had occasion to go by it in the course of his employment. Held, that he assumed the risk, whether he actually knew the danger or not. In Content v. Railroad Co., 165 Mass. 267, a trainman standing on the side ladder of a moving freight car came in contact with an unusually wide car that was standing on a parallel side track, and was injured. He knew that it was customary to store such cars on the side track, and the position of the tracks was visible. Held, that he assumed the risk. In Vining v. Railroad Co., 167 Mass. 539, a brakeman, while ascending the side ladder of a moving freight car in the day*196time, came in contact with another car standing on an adjacent side track, and was injured. He had worked on the line for a year. He had not seen the other car, and testified that he did not think of looking. Held, that he assumed the risk. In Bell v. Railroad Co., 168 Mass. 443, a brakeman came in contact with a pillar of a drawbridge while descending the side ladder of a moving car at night, and was injured. The pillar was about 4 feet from the track. The plaintiff knew of the bridge. Held, that he assumed the risk of such dangers. In Ryan v. Railroad Co., 169 Mass. 267, a brakeman, while descending from the top of a freight car, struck a picket fence on the top of a 4-foot wall alongside the track, and was injured. The fence was 3 feet 9-J- inches from the nearest rail. Held, that he assumed the risk.
In Perigo v. Railway Co., 52 Iowa, 276, a baggage-man, while on a moving passenger car, came in contact with a coal platform that was within 7 inches of the car at one end and within 4-|- inches of it at the other. He knew of the platform. Held, that he assumed the risk. In Brown v. Railway Co., 69 Iowa, 161, a fireman came in contact with a snow bank that was close to the track, while his crew were cleaning snow from the track with a snow-plow, and was killed. The court said:
“He must be held to have the same knowledge of this danger as he had of the close proximity of cattle-chutes, coal-sheds, platforms, bridges, water-pipes, or other structures and appliances necessarily located in close proximity to the track, which may be passed in perfect safety so long as employés keep themselves within line of the cars in the train, but which are dangerous when an employé exposes himself to contact with them by swinging outside of the line of the train.”
In McKee v. Railway Co., 83 Iowa, 616, an experienced brakeman climbed down the side ladder of a moving freight car, and hung down, and looked under the car, in the performance of his duty. His head struck a wing fence, and he was killed. The fence was 3 feet and 10 *197inches from the rail, and was at about the same distance from the rail as other wing fences on the line. Held, that he assumed the risk.
In Gibson v. Railway Co., 63 N. Y. 452 (20 Am. Rep. 552), a conductor came in contact with the projecting roof of a depot building, and was injured. The court say:
“When the deceased entered the employment of the defendant, he assumed the usual risks and perils of the service, and also the risks and perils^ incident to the use of the machinery and property of the defendant, as it then was, so far as such risks were apparent. * * * He could not call upon the defendant to make alterations to secure greater safety, nor, in case of injury from risks which were apparent, could he call upon his employer for indemnity.”
In De Forest v. Jewett, 88 N. Y. 264, a yardman fell into a small sluice or ditch in the railroad yard, and was injured. He had been employed in the yard for about two years, and knew of the existence of sluices and ditches in it; and, so far as could be determined by seeing them daily, he knew their width and depth, and the manner of their construction. Held, that he assumed the risk. In Tuttle v. Railway Co., 122 U. S. 189, a brakeman was caught between cars by the drawbars’ passing each other while attempting to couple cars on a curved track, and was killed. The alleged cause of the accident was the sharpness of the curve. Held that, as the perils were seen and known, he assumed the risk. In Randall v. Railroad Co., 109 U. S. 478, a brakeman, while working a ground switch for his train on one track, was struck by an engine passing on an adjacent parallel track, and injured. Held,' that he assumed the risk of the switch-stand being too near the adjacent track, and that “ a railroad yard where trains are made up necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad corporation in any work connected with the making up or moving of trains assumes the risks of that condition of things.” *198In Williams v. Railroad Co., 116 N. Y. 628, a freight brakeman, while standing on the top of a box car passing under a bridge, came in contact with the bridge, and' was injured. He had passed under the bridge on trains daily for three weeks. Held, that he must have known that it was not of sufficient height to permit him to stand while so passing, and that he assumed the risk.
In Pennsylvania Co. v. Finney, 145 Ind. 551, a brakeman of six months’ experience, while descending the side ladder of a car, came against a water-plug located so near the track that a person in the position he was in could not avoid it, and was killed. He had passed it almost daily during his employment. Held, that—
■'It was his duty to observe his surroundings before attempting to go down the ladder, and, had he exercised ordinary care and prudence in this respect, * * * the accident would not have occurred. * * * The means which a person has of knowing that, under the circumstances, he will expose himself to peril, are deemed in law to be evidence of knowledge of that fact.”
In Ryan v. Railway Co., 10 Ont. 745, a brakeman of several months’ service, while holding on to the side ladder of a moving car, came in contact with a switch target, and was thrown under the train and killed. The switch-stand had been erected in the yard before he commenced his service, so that he was aware of its proximity to the track. Held, that he assumed the risk.
In Missouri, etc., R. Co. v. Somers, 71 Tex. 700, a brakeman, while stepping down upon the rear platform of a caboose, in order to release the brakes on it, struck against a cattle-guard fence, and was injured. The plaintiff testified that he knew that several of the cattle-guards on the railroad were sufficiently near the track to strike the feet of a brakeman sitting upon the top of a car with his legs hanging down, but that he knew nothing of the one which caused the injury, except that it could not have been more than 10 inches from the car in order to strike him. Held, that he assumed the risk.
*199In Scidmore v. Railway Co., 89 Wis. 188, a brakeman, in alighting from his train in the night-time, in the performance of his duties, struck against a “clearance” post, and was thrown under the wheels of a moving car and injured. Held, that the knowledge of the brakeman that posts were used along the line of the road imposed upon him the risk incident to the existence of the particular post in question, although he had no actual knowledge of its existence.
In Boyd v. Harris, 176 Pa. St. 484, a brakeman, while performing his duties on a train, came in contact with a cattle-chute on a siding «Glose to the rail, and was killed. He had passed it daily for two months. Held, that he assumed the risk; that — ■
“The duty to observe and make himself acquainted with the obvious dangers to which his employment exposed him was on the deceased. The opportunity to observe and acquire a knowledge of these dangers had been enjoyed by him for many' days. Under such circumstances, the fair legal presumption is that he had improved the opportunity to observe and discharge the duty towards himself and his employer which his service required of him. If this proposition be- denied, then for how many more months must- an employe pass a point of danger daily before the presumption will arise ? Will it ever arise ? Or must the question of actual knowledge be turned over to the jury to guess at in all such'cases?”
There are cases cited from courts of other States which it may be said do not approve of the position taken by the courts in the foregoing cases. It will, however, be seen by an examination of the facts in each case, that the courts have refused to apply the rule of assumed risk because the servant did not know the exact danger, or had not had sufficient opportunity to learn of it. In Scanlon v. Railroad Co., 147 Mass. 484 (9 Am. St. Rep. 732), the facts were that the distance between a signal post by the side of a’railroad and a ladder on the outside of a car was one foot. A brakeman, on his first trip, did not know that there were erections so near, and was not informed *200of the danger. They were, in fact, exceptional. It was held that the danger was not obviously incident to his employment ; therefore the risk could not be said, as a matter of law, to have been assumed. In Illinois Central R. Co. v. Welch, 52 Ill. 183 (4 Am. Rep. 593), a brakeman was injured by coming in contact with an awning projecting over the track. The company was held to be negligent in this respect, and the court say that there was no reason for supposing that the plaintiff had acquired knowledge of the unsafe condition of this awning before he was injured, as.he had only been two months upon the road, and, except upon two trips, had always passed this station,in the night. Chicago, etc., R. Co. v. Russell, 91 Ill. 298 (33 Am. Rep. 54), is to the effect that leaving for months a telegraph pole near the track is negligence. Yet the court say in that case that there was no evidence that the deceased knew anything of this pole, or that he was ever required before to assist in switching cars off from this track. In Boss v. Railroad Co., 2 N. Dak. 128 (33 Am. St. Rep.756 ), the plaintiff had passed the switch-stand on this train nearly every day for two weeks, but he had no duty to perform in connection with the running of the train. The court say:
“ Had he known of its existence, or had he been chargeable with such knowledge, perhaps it would have been negligence on his part not to have watched for and guarded against it.”
In Walsh v. Navigation Co., 10 Or. 250, a brakeman put his head 8 inches out of a car window, in the nighttime, to see what was the cause of a certain noise in the running of his train, and his head came in contact with the timbers of a water-tank that was from 6 to 18 inches from the window sills of the car. The gauge of the railway had been recently widened, so as to bring the cars nearer to the timbers. The plaintiff had no knowledge of the proximity of the tank to the window, occasioned by the widening of the gauge. Held, that he did not assume the risk, as a matter of law. In Johnston v. Railway Co., *20123 Or. 94, a switchman had been employed in the yard only about two weeks. Held, that it could not be said, as a matter of law, that he was negligent. The court say: ‘ ‘ While he must have known of the existence and location of this switch target, he may not have known from observation * * * that it \yas near enough to the cars to be dangerous.”
In St. Louis, etc., R. Co. v. Irwin, 37 Kan. 701 (1 Am. St. Rep. 266), a freight-train conductor, while riding on top of his caboose, struck a brace that extended from the side-post to the top-beam of a bridge, and was injured. He had run over the road and through the bridge daily for three months preceding the accident, and knew that the bridge was constructed with overhead timbers. It did not appear that he had been on top of the cars more than ODce, in passing over the bridge, before the time of the accident. It was found by the jury that he had no knowledge or opportunity to know of the dangerous character of the bridge. Held, that whether he was negligent was for the jury.
In Kelleher v. Railroad Co., 80 Wis. 584, a switch-man struck against a coal-shed standing near the side track, and was injured. It did not positively appear that he ever had made this switch before. If he had ever done it at all, it was but a few times. The jury found that the shed was so close as to be unnecessarily dangerous, that deceased did not know of the existence of the shed at its distance from the track and cars, and that he had not the means of such knowledge. Held, that he did not assume the risk. In Dorsey v. Construction Co., 42 Wis. 583, the rule was stated that the knowledge on the part of the servant should be of the precise danger to him from an obvious defect, in order to hold him to an assumption of the risk. The facts in that case were that the conductor of a freight train was injured, while climbing up the ladder of a freight car, by coming in contact with a cattle-chute erected near the track, — dangerously near, as the court say. The proof showed that he had *202been employed for some months upon that part of the road; passed the chute during the term of his employment almost daily; knew the cattle-chute was there; and knew the exact location, with reference to the track, of two other chutes, similarly located, at adjacent stations. Yet the court stated that, while he may have known genei'ally of the proximity of the chute in question to the track, it did not necessarily follow that he knew its precise distance therefrom, and consequently the precise danger.
In Johnson v. Railway Co., 43 Minn. 53, the injury to the servant was caused by his coming in contact with a signal post erected in defendant’s yard, and situate about 4 feet from the track. At the time he received the injury, he was climbing up the ladder of a box car. He had been employed as switchman in the yard for two weeks or more, passing this post many times each day. The court say:
“We are not prepared to say * * * that he knew, or should have known, if he used ordinary prudence, the danger of such an accident. * * * While he must have known of the existence and location of this post, he may not have known from mere observation, or unless his attention had in some way been specially called to it (situated, as it was, in the center, between the tracks), that it was near enough to the cars to be dangerous, but might be misled, unless he had made actual measurement or calculation.”
In Sweet v. Railroad Co., 87 Mich. 559, the injured servant was one of a crew of switchmen in the company’s yard at Detroit, and his duties extended to all parts of the yard. His injuries were caused by coming in contact with a large shed of the defendant, located in the yard, near the side track, while he was ascending or descending a ladder upon one of defendant’s cars which was being moved on such track. The shed had been there for five years; and the intestate, who had formerly been a brakeman, had been employed as á switchman in that yard for a month or six weeks. There was no direct evidence that he was ever on that siding before the accident, or that his *203attention had been called to the dangerous proximity of the building, but there was evidence that cars were probably shipped in there once or twice a day.
In analyzing and discussing these cases, Bailey (Mast. Liab. p. 174) says:
“This case [Sweet v. Railroad Go., supra] was decided upon the somewhat peculiar ground that it was not his duty to inform himself of the danger to be apprehended from the defect until he had some reason to apprehend danger from it; that until then he might be influenced by the assumption that the master had regard for his duty, and would not negligently expose him to extraordinary peril.
“Was the rule applied in either of the foregoing cases? Rather, was it not evaded, or, more correctly speaking, was it not misapplied? Did not the injured employé in each of them have an abundant opportunity to ascertain the exact location of the structures with which he came in contact? It required no special skill or training to foresee that they were likely tó occasion him harm. It was a part of the duty of the servants thus engaged to obtain a knowledge of such risks and dangers. We have seen, ante, that he must take ordinary care to learn the dangers which are likely to beset him in the service; that he must not go blindly at his work, when there is danger; that he must inform himself; that such is the law everywhere; that he must use reasonable care in examining his surroundings; that knowledge on his part will be presumed, if the defect is obvious.
“It cannot be questioned for a moment that these cases were not decided in accordance with the rule stated, but rather from a special rule, arbitrarily applied by the court, and so applied by ignoring the contract relations between the parties, and ignoring the rights of the master as a party to that contract. We have seed that the duty of the master in such case is not to see that the servant actually knows. He has a right to rest upon the probability that anybody would know what was generally to be seen by his own observation. And to assume for a moment that a switchman, employed in a yard for weeks,' did not know the location of a building or of a post in plain sight, and which he passed many times a day; that he did not know its danger, simply because he may not have meas*204ured its distance from a track, when the only reasonable presumption is that he did not look at the time, or failed to remember, — is to disregard every reasonable inference. The master had a right to expect, when he placed so conspicuous an object before his servants, that they would observe it; would learn — would know — its precise danger to them. And, if he had such right to so assume, he could not be held to the duty of specially informing each employe that he had 100 or more signal posts, 100 or more cattle-chutes, 100 or more buildings of different sizes and of variable distances from his tracks (either main or side tracks), and specify to each such employe the exact distance in feet or inches each one was from the track. Such warning would be useless. No employe would pretend to remember the information as to each. His observation is a more perfect, safe, and certain means of information, and his own sense of duty and danger more suggestive of observation, than all the verbal or printed information the master could give.”
Again, on page 180, he says:
“The contract, therefore, must be that risks and perils obvious to a person of ordinary understanding are embraced therein, and assumed by the servant, when the opportunity has existed for observation. Where there are no peculiar dangers, knowledge of the defect is knowledge of the danger. The danger of contact with a post or structure while on a moving train is a matter of common knowledge. As to such defects, the servant cannot be heard to say that, while they were apparent and obvious, yet he did not know or ascertain their precise location, or realize their apparent danger. Knowing them to exist, it is his duty to ascertain their precise location with reference to the performance of his duties. When the location is ascertained, the danger is manifest; it being the law and the contract that the servant ought to know that which was plain to be seen, and which it was a part of his duty to learn and know. How, then, can it be said that the jury are to determine whether or not he had knowledge ? ”
In this view of the law we fully concur.
In Whipple v. Railroad Co., 19 R. I. 587 (61 Am. St. Rep. 796), a brakeman was knocked from a freight car, and injured, while climbing a ladder on its side, by strik*205ing a telegraph pole that stood about 3-|- feet from the rail of the side track, but inclined somewhat towards the track, the space between the pole and the top of the car being about 15 inches, which was sufficient to permit the passage of a man if standing erect, but insufficient by 7 or 8 inches to allow of .his passage while climbing a ladder. He had worked in the freight yard in making up freight trains for two or three months previously, and seems to have frequently passed the pole on foot, and on the tops of the moving cars, but had never attempted to pass it on the side ladder of a moving car. Held, that the danger was not so obvious as to charge plaintiff with knowledge ■ of it. This, and like cases that may be found in the reports, we think, cannot be sustained upon principle, and leave anything of the rule of assumed risks.
There are many other errors assigned in the record, but we do not deem it necessary to consider them, as, in the view we take, they are immaterial.
The judgment should be set aside, and no new trial awarded.
Geant, C-. J., concurred with Long, J.