out by the same evidence. That the parties to both suits are not identical is unimportant, unless such new parties claim rights or interests different from or independent of those claimed by the parties to the first suit. We perceive no error in the charge of the court, and the judgment is affirmed. (The other justices concurred.) WARNER v. CAMERON and others. (Supreme Court of Michigan. January 13, 1887.) APPEAL-BOND-JOINT DEFENDANTS-COSTS. In an action against the principals and sureties on an appeal-bond, where it appears that the suit in which the bond was given was in chancery, and that one of the principals thereon had an interest as defendant in the suit distinct from that of the other defendant and principal on the bond, and that she joined in the appeal and bond to protect her separate interest, and that the supreme court found in her favor, and ordered that no costs should be taxed against her, but that she should not be awarded costs, as she joined in the appeal-bond with the other defendant, against whom judgment was affirmed, held, that the first-named defendant is not liable on said bond. Error to Calhoun. A. M. Culver, for plaintiffs. John C. Patterson, (Wm. H. Brown, of counsel,) for defendant and appellant. CHAMPLIN, J. Plaintiff's intestate obtained a decree in the circuit court against the defendants, declaring that Reuben C. Sibley held certain lands in trust for complainant, and had, as such trustee, been guilty of waste; directing the execution of a deed, and payment of $12 damages on account of waste committed; also declaring a certain mortgage executed by Sibley to defendant Cameron to have been made by Sibley mala fide, and null and void, and directing its discharge of record; and that defendants pay complainant her costs of suit. After decree, and before the expiration of the time allowed by the statute to appeal, complainant died, and the suit was revived in the name of the above-named complainants. Both Sibley and Caroline L. Cameron appealed from the decree to the supreme court. They, as principals, with two sureties, joined in a bond, a copy of which is as follows: "Know all men by these presents, that we, Reuben C. Sibley and Caroline L. Cameron, as principals, and Wellington Bidwell and Theodore Hall, as sureties, are held and firmly bound unto William A. Warner, administrator of the estate of Mary Jane Warner, deceased, Myron A. Warner, Earnest Warner, Cordon Adelbert Warner, and Carlinda E. Oaks, or to their certain attorney, heirs, executors, administrators, and assigns; which payment well and truly to be made we bind ourselves, our heirs, executors, and administrators, and each and every one of them, firmly by these presents, sealed with our seals, dated the twenty-fifth day of June, 1883. The condition of this obligation is such that if the above-named Reuben C. Sibley and Caroline L. Cameron, impleaded with Harvey B. Hall, as defendants, and now revived in the names of the above-named obligees as complainants, and shall pay all costs of the said William A. Warner, administrator of the estate of Mary Jane Warner, deceased, Myron A. Warner, Ernest Warner, Cordon Adelbert Warner, and Carlinda E. Oaks, in the matter of appeal of said cause, without fraud or delay, then this obligation shall become null and void; otherwise to remain in full force and virtue. [L. S.] REUBEN C. SIBLEY. L. S. L. S. "WELLINGTON BIDWELL." [L. S.] The penalty of this bond was fixed, and the bond approved by a circuit court commissioner. Another bond of like import was also approved and filed, but is unimportant in the discussion of the points raised, which apply alike to both bonds. The supreme court affirmed the decree as to all except Mrs. Cameron, and modified it so as to protect her rights as mortgagee. Costs were decreed against Sibley; but as Mrs. Cameron made a joint appeal, and signed a joint bond, it was decreed that as to her no costs should be granted either in the supreme court or the court below, and that no costs should go against her in either court. Warner v. Hall, 53 Mich. 371, 375; S. C. 19 N. W. Rep. 40. This is a joint action against the obligors in the appeal-bond. The declaration sets forth the bond and conditions, and then proceeds to assign the specific breaches for which the action is brought, as follows: "And although afterwards, to-wit, on the sixteenth day of April, A. D. 1884, at the term of said supreme court held at the supreme court-room in the city of Lansing, said decree of said circuit court, in chancery, so far as it decreed payment and performance by the said defendant Reuben C. Sibley, was affirmed, and he, by the final order and judgment of said supreme court in the matter of said appeal, was adjudged and decreed to pay the costs of both courts to the said complainants named in the condition of said bond, which amounts to a large sum, to-wit, the sum of $177.76; yet the said plaintiffs aver, and in fact say, that the said Reuben C. Sibley hath not paid the amount of the judgment and decree so affirmed, and the costs, nor any part thereof, so decreed to be paid by the final order and decree of said supreme court, in the matter of said appeal, to the said complainants, nor to said plaintiffs, according to the tenor and effect of the writing obligatory; and the final order and decree so as aforesaid affirming said decree appealed from still remains in full force and effect, in now ise satisfied, vacated, or discharged, of all which the defendants had notice." The defendants Sibley, Hall, and Bidwell did not plead, and their default was taken. Mrs. Cameron demurred to the declaration, and assigned the following grounds: "(1) That the said declaration does not set forth any cause of action, as against the defendant Caroline L. Cameron. (2) The said declaration does not aver that costs were adjudged against the said Caroline L. Cameron by the supreme court in the case mentioned, so as to make this defendant liable upon the appeal-bond therein mentioned and set forth. (3) No breaches of the several bonds declared upon are averred, as against this defendant. (4) The supreme court expressly declared and determined in the case referred to that this defendant, Caroline L. Cameron, should not be liable for costs therein, and thereby released her from all liability on said appealbond, and also for that the said declaration is in other respects uncertain, informal, and insufficient, as against the defendant Caroline L. Cameron." The demurrer was overruled, with leave to plead; but, defendant preferring to stand upon her demurrer, her default was entered for want of a plea, and damages were assessed by the court, which included: “(1) The $12 decreed to be paid by Sibley as waste; (2) costs of the circuit court, in chancery; (3) costs of the supreme court awarded against Sibley; (4) interest on the several items taxed, viz., on the damages from the date of the decree, and on the costs from date of taxation; and judgment was rendered therefor by the circuit court." The first question presented is whether the declaration alleged a cause of action against Mrs. Cameron. The only breach of condition assigned was that the obligor Sibley had not performed the decree of the supreme court in not paying the $12 awarded as damages for waste, and in not paying the costs of the suit decreed against him. This showed a cause of action upon the bonds set out, in which Mrs. Cameron and Sibley were principals, and the other defendants were sureties. Nothing appeared upon the face of the declaration to show that Mrs. Cameron was discharged from any obligation to pay or perform the decree. This defense could not be raised by demurrer, unless the fact appeared upon the face of the declaration. Upon the assessment of damages, the decree of the circuit court, in chancery, was read in evidence; the two appeal-bonds; the decree of the supreme court made on appeal; and the certified copy of the bills of costs. From this evidence it appeared that the interest which Mrs. Cameron had in the suit was distinct from that of Sibley. She appealed to protect her mortgage interest, and prevailed. So far the decree was in her favor. In the matter of costs, she did not recover any, and none were awarded against her. The condition of the bond, so far as she was concerned, was fulfilled. Appeal-bonds in chancery have been construed by this court in the following cases: Kephart v. Farmers' & Mechanics' Bank, 4 Mich. 602; Daily v. Litchfield, 11 Mich. 497; Prosser v. Whitney, 46 Mich. 405; S. C. 9 N. W. Rep. 449; Kennedy v. Nims, 52 Mich. 135; S. C. 17 N. W. Rep. 735; and in Michie v. Ellair, 26 N. W. Rep. 837. Under these decisions, it was not competent to include in the assessment of damages against Mrs. Cameron the damages decreed against Sibley, nor the costs of the lower court. It is apparent from the opinion reported in 53 Michigan Reports that it was not the intention that Mrs. Cameron should be held liable for any costs in the chancery case. Express mention is made of the fact that she joined in the appeal, and in the bond with Sibley, and on that account, while not awarding any costs in her favor which she otherwise would have been entitled to, it was said that no costs should be awarded against her, and it was so decreed.. Under these circumstances, she cannot be held liable upon the appeal-bond. The judgment must be reversed, and a judgment entered here in her favor for the costs of both courts. (The other justices concurred.) GOULIN v. CANADA SOUTHERN BRIDGE Co. (Supreme Court of Michigan. January 13, 1887.) NEGLIGENCE-CONTRIBUTORY EVIDENCE OF RAILROAD SWITCHMAN. A switchman who has been employed for a week about a switch-engine which has a different kind of coupling at either end, and, having been coupling at one end, uses the other without examining it, and receives an injury to his hand by reason of assuming the coupling to be the same, and handling it as he did the other, is guilty of contributory negligence, and cannot recover. Error to Wayne. Action by railroad employe for damages against a railroad company, for injuries sustained through defendant's negligence. Verdict for defendant by direction. Plaintiff appeals. C. J. Reilly, for plaintiff and appellant. Henry Russell, for defendant. MORSE, J. In this case the court below directed a verdict for the defendant. The sole issue in this court stands upon the correctness of this ruling. The plaintiff lives in Trenton, and, at the time of his injury, was 30 years of age. He had worked in the stock-yards at Grosse Isle for the defendant about a year. His duty there was to unload stock from the cars, feed them, and reload them. The switchmen, with a pony engine, would bring the cars containing the stock to him. He had worked also at the same business in the stock-yards in the city of Detroit. He had been employed in all about two years. The stock-yards were in the railroad yards of the defendant. On the twelfth day of November, 1882, he was set to work by an agent of defendant as second switchman in making up trains in the yard, shifting cars with a pony engine in the railroad yard at Grosse Isle. He had no experience in switching at the time of this employment. The yard-master hired him on Saturday evening, and told him he would show him how to do the work. He did show him the next day, but said nothing to him about a defective draw The head in the engine, which plaintiff claims was the cause of the injury. front draw-head of the engine was a perfect one, but the one at the rear was defective. It was a double draw-head; the division between the upper and lower openings had a V or wedge shaped piece broken out, so that upon a casual glance it looked like a single opening. The plaintiff went to work with this engine on Monday, November 13th, and did day duty that week. This engine had no tender attached, and no cow-catcher. It was used in pulling cars in the yard, and would be coupled to them at both ends. The two divisions in the draw-heads were used to meet the heights of different cars without crooked links. Plaintiff's day duty consisted in following this engine, and doing as he was ordered in opening and shutting switches or coupling cars. The cars were mostly coupled, however, by the head switchman, known as the conductor. During such day duty plaintiff testifies that he coupled cars in front,—on the front part of the engine,—but made no coupling at the rear end, where this defective draw-head was situated. He had never examined that draw-head, and did not know that it was defective,—supposed it to be all right. a car. On the night of November 19, 1882, he was switching in the yard. About 11 o'clock the yard-master directed him to go to switch No. 1, and draw out He went, and, in coupling the car to the rear end of the engine, got his hand caught in this defective opening, or break in the division between the two openings, and crushed, losing three fingers, and otherwise maiming the hand. He says he stood upon the tail-board or foot-board of the engine. He had a lantern in one hand, had set the pin up in the draw-bar, and signaled the engine to back. As the car came up, without looking at the drawhead particularly, he undertook to enter the link. He claims it caught in this broken wedge-shaped place. The force of the engine twisted it sideways, and caught his hand. He had never before looked at the end of this draw-bar; and, when he endeavored to make the coupling, says: "I didn't look at the draw-bar. I supposed it was all right. Question. If you had looked for it, you could have seen it? Answer. I couldn't see it from the step. You couldn't have seen it unless you had looked right into the draw-bar. * * * 4. You say you had every reason to suppose that the draw-head was allright? A. Yes, sir. Q. So you didn't care to see for yourself? A. No, sir. Q. Then you gave the signal to move back? A. Yes, sir. Q. If you had an opinion that there was a break in the draw-head, you might have made the coupling, and not been hurt? A. Yes, sir; if I had known about it, I would have looked out for it." On redirect examination he further testified: "Question. You could have made this coupling without any accident if you had known of the break? Answer. If I had known of it,-that there was danger, I should have looked out for it,-if I had known it was broke." Plaintiff also testified that he could not look into the draw-bar from where he stood when coupling, and that this was the first time he had attempted a coupling at this end of the engine. John Dougherty, a witness for the plaintiff, testified that he was employed in the yard at the time of the injury to the plaintiff, and was familiar with this engine and draw-bar, and that the yard-master and conductor knew it was broken; that witness knew it was broken a month before the accident. On cross-examination he said the break could be seen as one looked at the drawhead; that he and others used it, and, by taking care of it, it worked all right. The plaintiff, being recalled, further testified as follows: "Question. I think you testified yesterday, in answer to Mr. Russell's question, that you might have observed this break in the draw-head under some circumstances. Now, will you state whether you desire to explain more fully in reference to that answer you gave. [Objected to by defendant's counsel.] Q. Will you state about your ability to see that break? A. If I could have seen it, I might not have noticed it. Q. Why not? A. For I might not have known but what it was a perfect draw-head; for there is a draw-head with one hole, and one with two; and I might not have known but what it was a perfect draw-head. Q. In the condition that draw-head was at the time you made that coupling, will you state whether or not it was extremely dangerous? A. It was, by what I heard by the railroad men afterwards. They said it was dangerous. Q. Will you state whether or not a casual glance at that draw-head would have disclosed its defect to you. A. Yes, sir; it would. Q. I don't think you understand my question. You have just stated that you probably would not have observed the break in the draw-head, inasmuch as you are not familiar with draw-heads? A. Yes, sir. Q. Now, will you state whether or not it would have been necessary for you to have made a close inspection of the draw-head in order to have discovered its defects. A. It would have been if I could not see it. The slot was inside of the draw-head,-broken clear inside of the draw-head. It was hollowed off in the back part,-open holes. Q. As I understand your answer, this apartment in the draw-head, making a distinct compartment, was so broken out that if you had merely looked at it you might have supposed it was a perfect draw-head with one opening only? A. Yes, sir." The plaintiff offered to prove, by additional witnesses, that the engineer and conductor of the pony engine and the yard-master had knowledge of this defect in the draw-head; that the draw-bar was not changed before this because the defendant had none to put in its place; he also offered to prove the pecuniary damage suffered by him on account of said injury,—all of which testimony it was conceded could be given; but, granting it, the court held that the plaintiff was not entitled to recover, and therefore declined to receive it. The circuit judge thereupon ordered a verdict for the defendant. The court below was right in this direction. The plaintiff was a man of mature years, and had been about railroads and cars enough to know that coupling cars was, at best, a dangerous employment, unless proper care was taken. He made, or undertook to make, a coupling in a draw-head that he had never looked at, although working about the engine for nearly a week. He undertook to insert the link without caring to look or glancing even casually at the draw-head, acting on the supposition that it was all right. This was in itself great negligence. It is not clear, by any means, that the break caused the accident. If it happened as he says it did, and the link caught in the break, then it is apparent that if the break had not been there, and he had undertaken to put the link in, precisely as he did, without looking, it would have come in contact with the end of the division between the two It openings, and produced precisely the same result. The force of the engine would have thrown the link up sideways, and caught his hand. There was no more danger with this break, if he had his eyes upon it, than there was without it. The injury happened solely because he did not look to see where he was holding the link with reference to the openings in the draw-bar. cannot be said, even if the defective draw-bar contributed to the injury, that plaintiff enployed the usual and customary means to guard against accident. The plaintiff endeavors to excuse himself for not looking, on the ground that, if he had so looked, he might not have known but what it was a perfect draw-head, "for there is a draw-head with one hole, and one with two," and he might have thought it only had one opening. This is altogether too speculative to avail him against his obvious carelessness in not looking at all. He did not even give it a "casual glance.” It was his duty to exercise reasonable care in the performance of his work. In working five or six days about this engine, without examining this draw-head, which he must have known he was liable to use at any moment, and attempting to make his first coupling without even looking to see if he was holding the link so it would enter the opening, or to notice whether it had one opening or two, he was not |