(dissenting). I regret that I am unable to agree with Justice McAlvay in the conclusions which he has reached in this case. While agreeing in the main with his statement of facts, I desire to call attention to one or two matters not specifically referred to by him. I first refer to a portion of the cross-examination of William C. Shortridge, the plaintiff’s principal witness.
In describing the manner in which plaintiff’s decedent approached the three cars on the track, after Smith and plaintiff’s decedent left the switch engine and started toward the cars, the witness testified as follows:
*627"He hadn’t got to the cars when the first coupling was attempted to be made. He was walking alongside of the car.
"Q. Now, it was after that, after you had attempted to make the first coupling, that he went in between those cars, wasn’t it ?
"Á. Yes, sir.
"Q. He must have been in there at the time the second coupling was made ?
“A. Yes; he must have been, certainly.
“Q. Now, it is a matter of common knowledge among all of you, isn’t it, it frequently happens, that the first coupling isn’t made ?
“A. Yes, sir.
“Q. That is an ordinary incident to railroading ?
"A. Yes, sir.
"Q. That the coupling, in order to make that, they have to make the attempt the second time ?
“A. Yes, sir.
“Q. Anybody that has worked around cars for a week, and isn’t — especially in a switchyard where they are making couplings — would know that that was liable to happen any day, wouldn’t they ?
“A. Yes, sir; he would.
{tQ. And Mr. Baker must have known that you might have missed your first coupling ?
"A. Yes, sir.
“Q. And that you might have to try to make it again ?
“A. Yes, sir.
*628“Q. Now, you yourself gave the signal for the engineer to make that attempt the second time, didn’t you ?
“A. Gave the signal to the fireman, because the fireman was on this side of the engine. I gave them the signal to back the engine into the cars to try it again, to try to couple it again. I was in charge at that point in making that coupling at that particular time. The engineer and the fireman would answer my signals, and they obeyed my signals, and attempted to make the second coupling, and at that time, I believe, was when Mr. Baker was caught. There was no other movement of the car that would catch him.”
Referring to the manner in which the Midland train had been handled for upwards of five years, Solomon A. Jodway, a witness on behalf of defendant, testified on direct examination as follows:
“Q. Did Mr. Baker at any time during his employment there handle this Midland train ?
“A. Tes, sir.
“Q. You may state, if you have the means, as to how much of his time he had been engaged at a point where he handled this train coupling and uncoupling it ?
‘‘A. During the month of October, 1907, he worked with the crew that done this particular work 37 days.
“Q. Did that crew on those 37 days each day handle this train, or these cars; that is, take them to the yard, couple and uncouple them ?
“A. Yes, sir.
*629“Q. How much of the time did he work with this crew handling this train in November ?
“A. Twenty-eight days. He worked with this crew one day in December.
“Q. Mr. Jodway, how long prior to the injury has this Midland train been handled over that Y to the coachyard by the switching crew ?
“A. I should judge from five to eight years.” .
Upon cross-examination of this witness he stated:
“ I never saw Baker or any other man cut the hose on this particular train. * * * Baker last switched this train on October 27th.”
The testimony of this witness, qualified as it is by his cross-examination, to my mind is the only positive evidence as to the length of time Baker had worked and assisted in handling the Midland train. The other testimony upon the subject is of a negative character, of witnesses who either had not seen him there or had not been with him there. A careful reading of this record leads us to the conclusion that Baker fully understood the manner in which this Midland train had been handled for months previous to his injury, and that he had himself worked about that train at least during the month of October, 1907. The undisputed evidence shows him to have been an intelligent, bright man. We can come to no other conclusion than that he understood the situation.
*630Much stress is laid by Justice MoAlvay upon the existence of what is termed the schedule, agreement, or contract, consisting of plaintiff’s Exhibit 1, which contains the following article:
“ All hose and chains will be cut on passenger trains after they arrive at all stations before being switched by carmen wherever carmen are stationed, instead of switch-men.”
It is not claimed that Baker was a member of the Switchmen’s Union. There is no testimony in the case to warrant the conclusion that plaintiff’s decedent ever had in his possession, or ever saw, or ever knew of the existence of, this so-called agreement or schedule. It is true that the witness Shortridge says that he (Shortridge) received a copy of the schedule and regulation soon after his employment, and that it was given to other switchmen. As to the knowledge of this document on the part of plaintiff’s decedent, the testimony of the witness Shortridge does not arise to the dignity of evidence. But it is urged by plaintiff’s counsel that this so-called regulation formed a part of the hiring of plaintiff’s decedent. Manifestly, if plaintiff’s decedent had no knowledge of its existence, it could not have formed a part of his contract. But conceding, for a moment, that there was some evidence that *631Baker had knowledge of the existence of this regulation or schedule, the evidence is undisputed that for upwards of five years, at least, the operation of the rule or regulation had never been applied to the Midland train. This being so, and there being an entire absence of testimony that plaintiff’s decedent ever made any complaint because' this schedule was not in operation, it must be held that there was a waiver of this regulation, rule, or agreement as between plaintiff’s decedent and the defendant. If there was ever a contract between these parties of this nature, it would be perfectly competent for them mutually to waive the terms of the same. It is urged by the plaintiff, however, that the force or effect of this regulation is equivalent to that of a public statute imposing duties upon the defendant. We do not so understand the rule. Justice McAlvay quotes from section 16 of 1 White on Personal Injuries on Railroads, as follows:
“An action for personal injuries may be based upon a contract, if there is an agreement imposing a legal duty upon one person for the protection of another. In such case, the duty imposed by contract is the same as that imposed by the law itself, and the breach of that duty would constitute a tort, founded upon a contract.”
The following authorities are cited by the text-writer: Addison on Torts, p. 13] 1 Cooley on Torts (3d Ed.), p. *632155 et seq.; Rich v. Railroad Co., 87 N. Y. 382 (80 N. E. 206). The illustration used by White on such liability is stated to be found in the case of the contract of the carrier of a person for hire, for the breach of which contract an action would lie against the carrier for the negligent injury to the passenger. But the same author continues in this language:
“But ordinarily, the essence of the action for the tort consists in the violation of the duty owed the individual, as a thing different from the obligation assumed under the terms of the contract.”
Turning to the case of Rich v. Railroad Co., supra., we find it stated that while an omission to perform a contract-obligation is not a tort, unless the omission is also the omission of a legal duty, such legal duty may arise not merely out of certain relations of trust and confidence inherent in the nature of the contract itself, but may spring from extraneous circumstances not constituting elements of the contract as such, although connected with and dependent upon it. In that case plaintiff’s complainant alleged, in substance, among other things, that he was the owner of lands in the village of Yonkers, adjoining the former site of defendant’s depot at that place; that because of the vicinity of the depot said lands were valuable for *633business purposes, and plaintiff had erected thereon stores and buildings, having borrowed the money for that purpose, which was secured by mortgage on the property; that because of the refusal of plaintiff and others to surrender to defendant, without compensation, certain valuable riparian rights, defendant moved its depot, whereby plaintiff’s property was greatly depreciated in value, and could only be restored and saved from foreclosure by restoration of the depot; that, to secure this, the plaintiff entered into a contract with defendant by which he surrendered to it said riparian rights, in consideration of defendant’s agreement to re-establish within a reasonable time and forever thereafter to maintain its depot at the former site, and thereupon the mortgagee agreed to delay a foreclosure sale; that defendant built its depot on the old site, but because of plaintiff’s refusal to consent to the closing of a street, which would seriously injure his property, without compensation in damages, said defendant, fully understanding plaintiff’s position, wilfully and maliciously violated its contract, and delayed a restoration of the depot for the express purpose of preventing plaintiff from being enabled to ward off a foreclosure, and instigated and induced the mortgagee to foreclose, and the property was sold at a great sacrifice. Upon the trial of the action, it *634was conceded that a good cause of action sounding in tort was stated in the complaint. Plaintiff offered to prove the agreement to restore the depot and its breach; that the restoration would have greatly enhanced the value of plaintiff’s property; also to show what defendant did in procuring and instigating the foreclosure sale; also, the declaration of the defendant’s officers as to the reasons for refusing to restore the depot. These were rejected as immaterial, and the court of appeals held that such ruling was error. In the course of the opinion the following language is used:
“ It may be granted that an omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty. * * * Whatever its origin, such legal duty is uniformly recognized, and has been constantly applied as the foundation of actions for wrongs; and it rests upon and grows out of the relations which men bear to each other in the frame work of organized society. It is then doubtless true, that a mere contract obligation may establish no relation out of which a separate or specific legal duty arises, and yet extraneous circumstances and conditions, in connection with it, may establish such a relation as to make its performance a legal duty, and its omission a wrong to be redressed. The duty and the tort grow out of the entire range of facts of which the breach of the contract was but one. *635The whole doctrine is accurately and concisely stated in 1 Chit. PI. 135, that, ‘ if a common-law duty result from the facts, the party may be sued in tort for any negligence or misfeasance in the execution of the contract.’ ”
Turning to 1 Cooley on Torts (3d Ed.), p. 155, we find the following language:
“Passing now from a,consideration of torts as they are found to be akin to or coincident with public wrongs, we may briefly direct attention to another side, on which they seem to be mere breaches of contract. Indeed, in many cases an action as for a tort or an action as for a breach of contract may be brought by the*same party on the same state of facts. (Church v. Anti-Kalsomine Co., 118 Mich. 219 [76 N. W. 383]). This, at first blush, may seem in contradiction to the definition of a tort, as a wrong unconnected with contract; but the principles which sustain such actions "will enable us to solve the seeming difficulty ” — citing and quoting at large in the note from Rich v. Railroad Co., supra.
“ If one by means of a false warranty is enabled to accomplish a sale of property, the purchaser may have his remedy upon the contract of warranty, or he may bring suit for the tort. The tort consists in his having been, by fraud and falsehood, induced to make the purchase. There is a broken contract, but there is also something more. There is deception to the injury of the purchaser in procuring the contract to be made. Suit may be brought on the contract, ignoring the fraud; but it may also be *636brought for the fraud, and then the contract will not be counted on, though it will necessarily be shown, in order to make it appear how the deception was injurious. The tort in such a case is connected with the contract only as it enabled the tort-feasor to bring the party wronged into it.”
Other illustrations are given by the author, instancing cases for malpractice by a physician, which may be either upon a contract or tort; also cases where the defendant, having received the property of the plaintiff under a contract to sell the same and return the proceeds, had sold the property and converted the proceeds to his own use, and it was held that either trover or assumpsit would lie. Numerous other illustrations of the rule are given. We have quoted thus at length from the text-writers and authorities to show what in our judgment is the utter inapplicability of the rule here invoked to a case of this nature.
Here, if there ever was a contract relation such as is claimed by the plaintiff, the contract was waived and practically abrogated by both of the parties thereto for a long period of time, and such waiver by their conduct was fully acquiesced in. Such a contract so treated bears no analogy to a public statute, and stands on an entirely different footing from public statutes or municipal ordi*637nances, which cannot be waived or abrogated. In Dixon v. Railway Co., 155 Mich. 169 (118 N. W. 946), this court held that rules defining the duties of certain employes, to whom the running and immediate control of trains is confided, are essentially private regulations of the master in the orderly and prudent conduct of its business, and do not fix the obligations and liabilities of the master to its servants, nor to third persons and the public, those obligations, being fixed by law, cannot be diminished by such rules, nor, ordinarily, increased thereby. See, also, McKernan v. Railway Co., 138 Mich. 519 (101 N. W. 812, 68 L. R. A. 347); Fonda v. Railway Co., 71 Minn. 438 (74 N. W. 166, 70 Am. St. Rep. 341).
There is much force in defendant’s position that by the practical construction of the schedule, so called, it did not apply to this train at the south Y, and that Baker, as well as the defendant, if such schedule ever did apply, had waived its terms. The mere fact that this schedule was in writing gives it no greater force than as though it rested in parol. If a builder in employing men to construct a brick building should hire six wheelbarrow men and six hod carriers, and set them at work at their appropriate duties, and should subsequently say to them, “ from this time on you will all become hod carriers,” and they *638acquiesced therein and entered upon such duties with full knowledge of the situation, and continued therein for months or years, we think it could not be said that they did not assume the usual risks of the latter employment.
Passing by many of the positions discussed by counsel, we are satisfied that this case must be disposed of under the rules applying to the ordinary case, where it is claimed that the defendant has violated its duty under the general doctrines applicable to master and servant. It is very apparent that there was no danger in cutting the hose between the three cars that stood disconnected from any engine upon the track. , The injury arose in the manner in which the work was sought to be accomplished. The instructions had been to place these cars in the coachyard. The cars were as harmless when coupled as they were when uncoupled. In the testimony of the witness Short-ridge his attention was called to certain rules of the company with which he was familiar. Among those, was rule 629, which reads as follows :
“Great care must be exercised by all persons when coupling or uncoupling cars. Inasmuch as the couplers of cars or engines cannot be uniform in style, size, or strength, and are liable to be broken and dangerous to those engaged in coupling them, all employés are enjoined before coupling cars or engines to examine and know the kind and condition of the drawhead, drawbar, and bumper link and coupling apparatus, and are prohibited from placing in the train any car with a defective coupling until they have first reported its defective condition to and received instructions from the yardmaster or conductor. Sufficient time is allowed and may be taken by employés in all cases to make the examinations required.”
Rule 630:
“All employés are required to exercise caution to avoid injury to themselves or to their fellow-employés, and especially in switching or other movements of cars and trains. They are required to inform themselves respecting the location of all structures and obstructions along the line that will not clear them when on top or sides of *639cars. * * * Attention is also called to the necessity of equal care in working about switches and stations and in yards to avoid injury by having feet caught in frogs, switches, and guard rails; jumping on or off trains or engines in motion for any purpose and all similar acts are dangerous. All empíoyés are warned that, if they commit them, it will be at their peril and risk.”
In the light of the testimony of the witness Shortridge, above quoted, and of all the circumstances surrounding the occasion, there is much force in the claim of the defendant that the plaintiff’s decedent was guilty of contributory negligence in entering between the cars after he saw the engine applied to them, as he was approaching the cars. However, it may be doubted whether this was not a question of fact for the jury under proper instructions.
We prefer to place our.decision upon the ground that the defendant’s failure to have the hose cut by carmen was not the proximate cause of the injury; and, where the facts are not in dispute upon that question, it is for the court to find as matter of law whether or not the negligence complained of was the proximate cause. This is so elementary that it is hardly necessary to cite authorities in support of the rule. Conceding for the moment that the defendant was negligent, if the negligence of the defendant merely created the occasion, or gave rise to the condition on which other independent acts operated to cause the injury, the defendant cannot be held. In this case the negligence complained of is, in substance, that the hose and chains on these cars were left coupled, instead of being uncoupled. The alleged negligence of the defendant was the neglect to have them uncoupled by car-men. Assuming for the moment that such duty was imposed by the schedule, the fact that defendant had neglected its alleged duty in that regard was well known to Baker, both prior to and at the time of the injury. This negligence had created a condition, namely, cars coupled together with hose and chains. As we have be*640fore said, the cars were as harmless when coupled as they were when uncoupled. There was nothing in this condition to cause the injury, and nothing in it that did cause the injury. This was nothing more than the condition or situation in which the couplings were left. Baker selected a time to do this work when he should have known that it was dangerous, because he knew the engine, under the direction of Shortridge, his fellow switchman, was engaged in attempting to couple onto the cars. He must have known that more than one attempt to couple was a common occurrence, and might be necessary. He must have known, or should have known, that, if from any cause these cars were moved or shoved together while he was between them, he was likely to be killed or injured. The cars were moved while he was between them. Even if we are to say they were moved negligently, the negligence was that of a fellow-servant, for which defendant is not legally liable. It was this movement of the cars while Baker was between them that was the proximate cause of his injury. Lewis v. Railway Co., 54 Mich. 55 (19 N. W. 744, 52 Am. Rep. 790). The reasoning of Chief Justice Cooley in this case fully covers the question of proximate cause applicable to the instant case. Vandercook v. Railroad Co., 125 Mich. 459 (84 N. W. 616); McLane, Swift & Co. v. Elevator Co., 136 Mich. 664 (99 N. W. 875, 112 Am. St. Rep. 384); Stark v. Lighting Co., 141 Mich. 575 (104 N. W. 1100, 1 L. R. A. [N. S.] 822); Burrman v. Railway, 143 Mich. 689 (107 N. W. 709); Wickham v. Railway 160 Mich. 277 (125 N. W. 22, 136 Am. St. Rep. 436); 1 White on Personal Injuries on Railroads, § 36 et seq.j 1 Cooley on Torts (3d Ed.), p. 99 et seq. That all the members of this switching crew were fellow-servants of plaintiff’s decedent appears very plainly in the record. They were all engaged in the common service of switching cars. On the particular occasion in question they were engaged in moving three cars from one part of the yard to another part of the yard, and in doing the various duties incident to the accomplishment of that *641work. If by negligence fellow-servants cause injury to each other, the employer is not liable. La Pierre v. Railway Co., 99 Mich. 212 (58 N. W. 60); Stanley v. Railway Co., 101 Mich. 202 (59 N. W. 393); Greenwald v. Railroad Co., 49 Mich. 197 (13 N. W. 513); Whalen v. Railroad Co., 114 Mich. 512 (72 N. W. 323); Conger v. Railroad Co., 86 Mich. 76 (48 N. W. 695); Burrman v. Railway, supra; Pease v. Railway Co., 61 Wis. 163 (20 N. W. 908). Inasmuch as the acts of these fellow-servants were conclusively shown to have been the proximate cause of Baker’s death, the court should have directed a verdict for defendant. This view of the case impels us to reverse the judgment of the court below; and, because the law and facts conclusively show that the negligence alleged was not the proximate cause of the death of plaintiff’s decedent, no new trial should he granted.
Steere, Brooke, and Ostrander, JJ., concurred with Stone, J.