and from that down the distance between them varied from, approximately, 15 to 25 feet at the bridge. It is the claim of plaintiff that these lights were insufficient and that they had become dim from the smoke and fog, so as to make it impossible for the engineer to see any considerable distance in going down the incline.

It is the claim of defendant that there was no showing of negligence on the part of the defendant which contributed to plaintiff's injury and that plaintiff, being a man of mature years, of more than average intelligence and experienced in the line of work in which he was engaged, assumed the risk incident to the employment.

A request was made, at the close of plaintiff's proofs and again at the conclusion of the trial, by defendant's counsel for direction of a verdict, and error is assigned because of the failure of the court to direct a verdict as requested.

It must be conceded that the operations being conducted were of a dangerous character, as we have the men operating these construction trains in a pit 30 feet in depth with a high wall on three sides and a grade on the fourth side. The work being carried on in the night, it was the duty of the company to make the operations reasonably safe by providing suitable lighting. This it attempted to do, as described; but can it be said that its duty stopped here? With its four or more engines operating constantly it is reasonable to assume that the lights would be affected and become dim and smoky, and it follows that their usefulness for the purpose for which they were installed would be impaired. The plaintiff testified that on the night of the accident it was stormy and dark, some of the lights were out, and others smoky. In view of the character of these operations, the trains being operated without any set schedules or rules governing them, it was the duty of the defendant to

keep the lights in such a condition as to make the operations of the trains reasonably safe. The rule that it is the duty of the master to furnish the servant a safe place to work is so well established and so universal that no citation of authorities need be given to support it. Testimony was introduced on the part of the defendant to show that the lights were bright and had been inspected. Whether or not the lights served their purpose, or whether the condition of the lights was the proximate cause of the accident, were questions of fact for the jury and were properly submitted to them by the trial court. Kaukola v. Mining Co., 159 Mich. 689 (124 N. W. 591).

It being claimed that the injury to plaintiff resulted from the negligence of the defendant in not lighting the premises in such a manner that Cameron, the engineer, could have seen the other train in time to have stopped his engine and thus avoided the accident, it cannot be said, as a matter of law, that this was a risk incident to plaintiff's employment. In the case of Milbourne v. Power Station Co., 140 Mich. 316, 324 (103 N. W. 821, 824, 70 L. R. A. 600), which in some particulars is a very similar case, Mr. Justice CARPENTER said:

"Neither do we think that the court can say, as a matter of law, that plaintiff assumed the risk which occasioned his injury. We cannot say that plaintiff assumed it unless we can say that the risk was incident to his employment, or that he knew or should have known that the loaded cars were on the spur. See Bradburn v. Railroad Co., 134 Mich. 575 (96 N. W.929). If his injury resulted from the negligence of his employer, the risk was not incident to plaintiff's employment. It does not avail defendant to say that plaintiff assumed the risk of the shock resulting from cars coming together on the siding 'with customary force.' For, from the evidence, it may be inferred that the shock of the collision was much greater than the shock ordinarily resulting from cars coming together on the siding. It certainly cannot be said that plain

tiff knew that the loaded cars were on the siding. And if those in charge of the train were not bound to know that they were there and we have held that they were not-neither was plaintiff bound to know it."

Whether it was customary to leave a train of empties to the west of switch A, at or in front of the railroad bridge, while empty trains were coming down track No. 1, was a matter in dispute. Cameron, the engineer, was not produced as a witness. If, as claimed by the plaintiff, it was not customary to leave cars at the place where the accident occurred, so as to give the men employed notice, Cameron had a right to assume that the track was clear, and it cannot be said that he would be guilty of contributory negligence, as a matter of law, if he operated his train with reasonable care in view of all the conditions. With reference thereto and the assumption of risk the court charged the jury as follows:

"Now, there is another matter here. The plaintiff cannot recover if the accident was the result of the negligence of his coemployees, who, for instance, would be Cameron, or would be Monkman. If the accident was the result of their negligence, then it was not the negligence of the company, naturally, and a person cannot recover in Michigan, if he can anywhere else, for personal injuries when those injuries are the result of the negligence of his coemployeesof his fellow-servants. So, if Monkman, by having his train there, was negligent, thereby causing the accident, plaintiff cannot recover.

"And, further, I charge you that Murphy is charged with knowledge of occurrences which, by reason of their frequency before the accident, any prudent man would expect to occur again. And if it was an ordinary or frequent occurrence that cars were left on track No. 1, westerly from the railroad bridge, Cameron, the engineer, with whom Murphy was riding, must have known, or had every reason to expect, it would occur again, and if, by reason of fog or failure of light, Cameron could not see whether any train was there, still he should have approached so care

fully as not to have caused an accident, and is chargeable with the failure so to do. And if you find it was a frequent custom to leave cars on that track, and that any prudent, careful man would have known it, you should return a verdict for the defendant.

"There is another doctrine that might defeat the plaintiff's action, one which lawyers call the doctrine of assumption of risk. Now, this is a dangerous employment, and the plaintiff knew it when he went there to work. The defendant company did not insure their employees against accident. They do not agree that in every accident that occurs they will compensate them in damages or make it right for them. Murphy must have known this was a dangerous employment, and it was his duty to use prudence and care accordingly. Furthermore, if he knew that this work was being carried on in such a manner that an accident was liable to occur, it was his duty to quit, and if, knowing that, knowing and appreciating the risk that was involved in continuing to work there, if he continued on in his employment he is deemed to have assumed the risk, and the company is released from liability, and he cannot recover.

"There has been some contradictory testimony-to the best of my recollection it was testified to differently by different witnesses in regard to mist or fog down there. Naturally the company would not be liable for mist or fog, if the mist or fog alone was the cause of the accident. They are not liable unless their negligence, the negligence of the company, as pointed out, together with mist or fog, was the proximate cause of the injury complained of in this case."

The case was properly submitted to the jury, and the judgment is therefore affirmed.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, STONE, OSTRANDER, and BIRD, JJ., concurred.

KLETT v. KLETT.

1. SPECIFIC PERFORMANCE-CONTRACTS-ORAL AGREEMENT TO CONVEY LANDS-PARENT AND CHILD.

Complainant, in a suit to specifically enforce an oral contract to convey real and personal property to him in consideration of support and services to be rendered to the father and mother of complainant, was not entitled to the relief prayed upon a record showing that they stipulated as a part of the arrangement that if the son became dissatisfied or the parties were unable to live peaceably together he was not bound to continue to perform the contract; that the condition so introduced into the contract was a material provision thereof, and that the parties had been unable to live together in peace.1

2. SAME-PERFORMANCE.

Where the defendants became dissatisfied and attempted to terminate the arrangement without sufficient grounds, after complainant had for ten years and upwards endeavored in good faith to carry out the conditions of the contract and had expended considerable sums upon the property or farm in controversy in pursuance of the agreed conditions, he was entitled to an equitable lien upon such portion of the farm as was not exempt for homestead purposes to reimburse him for the improvements made, and the sums expended in maintaining his parents, after deducting the amount received from the land.

3. HOMESTEAD-LIEN-DEEDS-ORAL Contracts.

Rights growing out of an oral contract cannot affect the homestead interest of the owner of real property or of his wife.

Appeal from Muskegon; Sullivan, J. Submitted January 29, 1913. (Docket No. 87.) Decided May 28, 1913.

'On the specific performance of an oral contract to devise or convey land in consideration of performing services or furnishing support where no possession taken or improvements made, see notes in 15 L. R. A. (N. S.) 466 and 38 L. R. A. (N. S.) 752.