five (5) feet from the side line of our said lots, so that a distance of ten (10) feet between the buildings shall be maintained on said Chandler avenue; that said buildings shall be built of either brick, stone or frame, and shall cost at least the sum of twenty-five hundred dollars ($2,500)."

In fact, the record discloses that Chandler avenue is not a street of single dwellings, and not one on which the dwellingserected are uniformly distant from street and side lines. In the second place, the instrument creates no easement upon lots, and is not binding upon the assigns of those who executed it. It contains a covenant, which is simply a contract, and is purely personal to those executing the instrument, relating only to their own acts. Easements -incumbrances on land-must be created by apt words, and a perpetual easement is not to be inferred from language clearly consistent with a mere personal undertaking.

No

"In construing the covenant, it is to be observed that the grantor, although speaking for himself and his successors, to the grantee and his successors, confined the restriction to himself alone, by agreeing that he, the grantor, would neither erect nor cause to be erected any building that should be regarded as a nuisance. According to the literal, and hence natural, interpretation of this language, the parties meant that the grantor should not personally do or cause to be done any of the inhibited acts. doubt could arise as to the correctness of this construction, if the parties had not agreed in behalf of themselves and their assigns. The substance of the covenant, however, is limited to the covenantor, and purports to restrict his action only. While the capacity in which he assumes to contract is in behalf of himself and others, the actual contract, or the thing agreed not to be done, is limited to his own acts. Clearly the inconsistency cannot be dispelled by subordinating substance to form, or by holding that the actual agreement is of less importance than the capacity in which it was made."

This is the language of the court of errors of New York in construing a covenant contained in the very deed of the land. Clark v. Devoe, 124 N. Y. 120, 124, 125 (26

172 MICH.-30.

N. E. 275, 27 Am. St. Rep. 652). The reasoning of the court in that case is sound, is applicable here, and the case is authority for holding that the agreement of October, 1904, does not create an easement, and that lot 49 is subject only to the general restriction stated in Tillotson v. Gregory.

MCALVAY, J., concurred with OSTRANDER, J. BIRD, J., did not sit.

WALLIN v. ARCADIA & BETSEY RIVER RAILWAY CO.

NEGLIGENCE-INTOXICA

1. RAILROADS-MASTER AND SERVANT TION OF EMPLOYÉ-PERSONAL INJURIES. Under 2 Comp. Laws, §§ 6284, 6285 (3 How. Stat. [2d Ed.] §§ 6638, 6639), prohibiting the employment by railroads of ser vants who use intoxicating beverages, there is no civil liabil ity arising against the corporation for violation of the stat ute, which is penal in its nature and adds nothing to the common-law liability.

2. MASTER ANd Servant-RAILROADS—INCOMPETENT SERVANTS. Accordingly, the master was not liable to an employé injured by the negligence of a freight conductor while under the influ ence of intoxicants, unless the conductor had become incompetent by reason of his use of intoxicating liquors, and the railroad company knew or ought to have known of the alleged incompetency: and the trial court erred in submitting the case to the jury on the theory that defendant was liable if it had notice of his use of intoxicants.

3. SAME.

Where plaintiff attempted to open with his hand a coupler which had failed to work when the engineer had attempted to make the coupling, and had entered between the cars while they were standing at rest, believing that the locomotive would not be moved until he gave the signal, and where

the conductor appeared and gave the signal without plaintiff's knowledge, plaintiff was not chargeable with contributory negligence, as a matter of law, for taking the dangerous way to perform the duty.

4. SAME ASSUMPTION OF RISK.

Plaintiff did not assume the risk of the conductor's intemperate habits, of which plaintiff had knowledge, since defendant violated a statutory duty. 2 Comp. Laws, § 6284, 3 How. Stat. (2d Ed.), § 6638.

5. SAME STATUTES.

It was not necessary that plaintiff plead the statute in order to avail himself of it in defense of the charge that he assumed the risk.

Error to Manistee; Withey, J. Submitted January 16, 1912. (Docket No. 76.) Decided November 8, 1912.

Case by Charles A. Wallin against the Arcadia & Betsey River Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error. Reversed.

Kleinhans & Knappen (Dovel & Dovel, of counsel), for appellant.

D. G. F. Warner (Smurthwaite & Belcher, of counsel), for appellee.

BROOKE, J. Plaintiff recovered a judgment for damages for injuries received on February 19, 1909, while in the employ of defendant. Defendant operates a railroad 21 miles long between Copemish and Arcadia. Upon this road it runs a single mixed train, one round trip each day. The train crew at the time of the accident consisted of Conklin, the conductor, Lang, the engineer, and plaintiff, who acted as fireman on the road and brakeman at switching points. This position plaintiff had held for a total period of three years, one-half of which immediately preceded his injury. At Copemish there is a union depot used by the Ann Arbor Railway, the Manistee & Northeastern Railway, and defendant. Upon arrival at the

depot at about 10:20 in the morning, it is customary for Conductor Conklin to take the mail from that point to the post office. After discharging the passengers, the train is run a few hundred feet to a switch, then upon a side track in a northwesterly direction to defendant's freight depot. Necessary switching operations are then carried on; plaintiff doing the switching when the conductor is absent.

On the morning in question, the conductor absented himself from the train as usual. The "peddler " or local freight car had been left in front of the freighthouse, and plaintiff and Lang, the engineer, had done the necessary switching; the conductor being absent. The engine was then run back to the freighthouse to be coupled to the "peddler" for the return trip. When the tender of the engine was first pushed against the "peddler," the coupling failed to "make." The impact pushed the "peddler" some four feet away from the tender. Plaintiff, who had been standing upon the tool box at the back of the tender, jumped off and crossed to the "peddler," and with his hand attempted to open the coupler on that car. While in the act of opening the coupler, the engineer, in obedience to a signal from Conklin, who, it was claimed, had returned without plaintiff's knowledge and was standing on the freighthouse platform, backed the tender against the peddler," crushing plaintiff's hand between the couplers. Four negligent acts of defendant are counted upon by plaintiff. The first three were eliminated by the circuit judge. As the plaintiff does not appeal, it is necessary to consider only the fourth, which is as follows:

66

"That the conductor of the train was incompetent, in that he was in the habit of getting intoxicated and was unfit to discharge the duties of a conductor, which was known to the defendant, and that at the time of the injury he was under the influence of intoxicating liquors to such an extent as to make his condition the real or proximate cause of the injury."

Upon this question, the court charged the jury as fol lows:

"It was the duty of the defendant in this case to use reasonable diligence to know that its conductor on that train was a sober man, not in the habit of drinking intoxicating liquor as a beverage. That was a continuing duty. A duty that was upon the defendant all the time. From the time that it employed Conklin until the accident in question. If the defendant neglected that duty, and did not observe its duty in regard to it and exercise such diligence by observation and inquiry, as a reasonably prudent employer should and would have done, and the plaintiff's injury is attributable to that neglect, then the plaintiff is entitled to recover. It is an undisputed fact in this case that some of the officers of the defendant knew that the conductor, Conklin, drank intoxicating liquors more or less, because they came upon the stand and told you that they knew it, and drank with him in saloons. So that it appears without contradiction in this case that the conductor drank intoxicants as a beverage. So they were chargeable with the knowledge of the fact that he did drink intoxicating liquors as a beverage. But this alone would not entitle the plaintiff to recover, and it would not in itself afford a basis for recovery for the plaintiff, but it is a fact which is proper for you to consider to determine in connection with all the evidence in the case, whether or not the habits and condition of the conductor was the moving cause of the plaintiff's injury. The term, 'drunk,' or 'being drunk,' and 'intoxicated,' 'being intoxicated,' those terms have been used very frequently in your presence in this case. I say to you in that connection, that if on the occasion in question, the conductor, Conklin, was not in the normal, natural, legitimate exercise of his natural functions, and that he was appreciably out of the normal condition, so that he could not exercise the same ready care and judgment that he would do if he did not indulge in the drinking of intoxicating liquor, and that it contributed in an appreciable degree to his conduct on this occasion when he signaled back this engine, as he said he did, and wrought the injury to the plaintiff, without negligence on the part of the plaintiff which contributed thereto, the plaintiff is entitled to recovery in this case. On the other hand, if the drinking of Conklin on that day, if he did drink any, or on any other day, if he did drink any, did not disturb his mental balance, and left his judgment as alert, as keen, and accurate as it would be normally,