"Q. So you were unable to advise the court as to whether or not there was anything defective with this lever, or either of those levers ?

"A. Well, I can advise them that one lever that I tried to work wouldn't work, but I couldn't say what was the matter with it that it didn't work, and the other lever on the other side I didn't get across there because there was no chance to give a signal neither to the way car or the engine, so I would be practically no good at all there. "Q. You saw nothing defective about it?

'A. No more than the lever didn't come way across on the side I was on."

Counsel for the defendant argue nine groups of errors. They have all been examined, but we think the following the important ones calling for discussion:

(1) Did the testimony for plaintiff so clearly establish negligence upon his part as to preclude a recovery?

(2) Should the court have directed a verdict because the cars which were foreign cars were inspected by an inspector who was a fellow-servant of plaintiff ?

(3) It is claimed no negligence was shown on the part of defendant, and for that reason a verdict should have been directed.

(4) Should the case be reversed because of the improper argument made to the jury by counsel for plaintiff ?

We will take up these questions in the order mentioned: 1. Was plaintiff guilty of contributory negligence as a matter of law? The statute, so far as relates to the couplings in use upon this occasion, required—

"Some form of safety coupler or safety coupling device by which the cars can be coupled and uncoupled from either side of the train without the necessity of going between the cars: * * * Provided, further, That no freight car shall be run upon any of the railroads within this State after the first of January, eighteen hundred and ninety-one, unless furnished with safety couplers as provided by this act." 2 Comp. Laws, § 5511.

In Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110), it was held that, as the doctrine of the assumption of risk by the employé rests upon the contract of employment, as the master cannot legally contract to violate a

statute, the servant does not assume a risk growing out of an omission to perform a statutory duty. In the same case there is an elaborate discussion of the difference between the doctrines of assumed risk and contributory negligence, and in the opinion it is said that the latter defense may be open when the former may not be made. We have quoted very fully from the testimony of plaintiff to show how the accident occurred, and what knowledge he had of the situation.

There is testimony in the case that many automatic couplers have a bar, to which the chain is attached that lifts the pin, which extends clear across the end of the car with a lever at each end. The cars upon this train were so equipped that, when plaintiff failed to lift the pin with the lever, which he says he repeatedly tried to do, he was compelled either to try to lift the pin the way he did try or else to go around the car and lift the lever. If he did this, he could not be seen by the engineer, and he would be in a position where he could not control the movements of the train. The statute does not contemplate that the equipment may be such that the brakemen can uncouple the car from one side or the other of the train without the need of going between the cars, but the provision is that the equipment shall be such that the car can be coupled or uncoupled from either side of the train without the necessity of going between the cars. The brakeman has the right to expect a device which will allow him to uncouple the car from either side of the train. It is clear from the testimony of the plaintiff that he tried and failed to separate the train without the necessity of going between the cars, and that the only way the car could be uncoupled from the side of the train upon which he stood was to do just what he attempted to do. It should not be forgotten that this train was not stalled in a yard, but it was stalled between stations and blocked the only track between stations, and no train could pass until the train continued its journey, and its continuing on was important. The whole situation was before the plaintiff. He

was in a difficult situation. We think it cannot be said, in the light of the testimony and the situation, as a matter of law, that plaintiff was guilty of contributory negligence, but the testimony presents a question for the jury. See De Cair v. Railroad Co., 133 Mich. 578 (95 N. W. 726); Gillespie v. Railway Co., 150 Mich. 304 (113 N. W. 1116); Smith v. Railway, 155 Mich. 466 (119 N. W. 640).

2. The record discloses that the foreign cars were inspected the morning of the day when the accident happened, and it is insisted the inspector is a fellow-servant of the plaintiff, and because of this inspection defendant is relieved of liability; counsel citing Lellis v. Railroad Co., 124 Mich. 37 (82 N. W. 828, 70 L. R. A. 598), and some of the cases cited therein. An examination of these cases will show that in none of them was the question of neglect of a statutory duty involved.

3. Was no negligence shown on the part of defendant? The statute requires the use of a coupling device "by which the cars can be coupled and uncoupled from either side of the train without the necessity of going between the cars;" and forbids the use of cars without such a device. In Toledo, etc., R. Co. v. Kountz, 168 Fed. 832, 94 C. C. A. 244, Judge Knappen, speaking for the court, said:

"Request No. 16 asked an instruction that if the jury

'Should find that Miller, before he attempted to cross the tracks, knew that defendant's train was approaching at a rapid rate of speed, and with such knowledge attempted to cross the track ahead of said train, and that this was the proximate cause of his death, as said term has been defined to you above, then you are instructed that the plaintiff is not entitled to recover.'

"This requested instruction, it will be seen, proceeded upon the theory that, if Miller's act in crossing the tracks ahead of the train was the proximate cause of his death, there could be no recovery, even though such crossing was in the regular discharge of his duty, and although he

had no other way to go to his station except by crossing the tracks, and notwithstanding his conduct was entirely free from negligence. The jury was permitted under the charge of the court to find for the plaintiff only upon the theory that Miller's death was caused by the catching of his foot in the unblocked frog. The failure of defendant to comply with the statutory requirement of blocking the frog was negligence as matter of law. Cincinnati, etc., R. Co. v. Van Horne, 69 Fed. 139, 140, 16 C. C. A. 182; Lake Erie, etc., R. Co. v. Craig, 73 Fed. 642, 19 C. C. A. 631; Narramore v. Railway Co., 96 Fed. 298, 300, 37 C. C. A. 499 (48 L. R. A. 68). The statute is designed for the protection, not only of employés who may step into them, but of those dragged or pushed into them by an engine. Cooper v. Railroad Co., 159 Fed. 82, 86 Č. C. A. 272 (16 L. R. A. [N. S.] 715).”

In the case of St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281 (28 Sup. Ct. 616), involving the construction of a statute which provided (27 U. S. Stat. p. 531 [U. S. Comp. Stat. p. 3175]): "And after July first, eighteen hundred and ninety-five, no cars either loaded or unloaded shall be used in interstate traffic which do not comply with the standard above provided for," Justice Moody, speaking for the court, said:

"The evidence showed that drawbars, which, as originally constructed, are of standard height, are lowered by the natural effect of proper use; that, in addition to the correction of this tendency by general repair, devices called shims, which are metallic wedges of different thickness, are employed to raise the lowered drawbar to the legal standard; and that in the caboose of this train the railroad furnished a sufficient supply of these shims, which it was the duty of the conductor or brakeman to use as occasion demanded. On this state of the evidence the defendant was refused instructions, in substance, that if the defendant furnished cars which were constructed with drawbars of a standard height, and furnished shims to competent inspectors and trainmen and used reasonable care to keep the drawbars at a reasonable height, it had complied with its statutory duty, and, if the lowering of the drawbar resulted from the failure to use the shims, that was the negligence of a fellow-servant, for which the

defendant was not responsible. In deciding the questions thus raised upon which the courts have differed (St. Louis, etc., R. Co. v. Delk, 158 Fed. 931, 86 C. C. A. 95), we need not enter into the wilderness of cases upon the common-law duty of the employer to use reasonable care to furnish his employé reasonably safe tools, machinery, and appliances, or consider when and how far that duty may be performed by delegating it to suitable persons for whose default the employer is not responsible. In the case before us, the liability of the defendant does not grow out of the common-law duty of master to servant. The congress, not satisfied with the common-law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that:

"No cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard.'

"There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does in point of fact use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the law making body. It is said that the liability under the statute, as thus construed, imposes so great a hardship upon the railroads that it ought not to be supposed that congress intended it. Certainly the statute ought not to be given an absurd or utterly unreasonable interpretation leading to hardship and injustice, if any other interpretation is reasonably possible. But this argument is a dangerous one, and never should be heeded where the hardship would be occassional and exceptional. It would be better, it was once said by Lord Eldon, to look hardship in the face rather than break down the rules of