61 Vt. 348 | Vt. | 1889
The opinion of the court was delivered by
The disposition of one question controls this case, •and renders the other questions di.-cussed immaterial. A servant assumes all ordinary risks incident to his employment. By •entering upon, and continuing in his service, he is presumed to ■fake upon himself its natural and ordinary risks and perils.. Railroad managers are hound by law to provide their servants with safe and suitable roadbeds and machinery, including all appliances for the discharge of their respective duties; there is •an implied contract on their parí; to perform this duty. No •authorities contravene the rules above stated. But a servant assumes no risk caused by his employer’s breach of dutjq unless lie has knowledge of the danger thereby caused, and voluntarily •continues in the employment. If with this knowledge lie does •continue, the increased danger becomes an incident of the service which ho assumes, and for any injury resulting therefrom the master is not liable. By the acceptance of the service and the continuance therein, the servant assumes the hazard incident to obvious and known dangers. Gibson v. Erie Ry. Co., 63 N. Y. 449; DeForest v. Jewett, 88 N. Y. 264; Buzzel v. Laconia Mfg. Co., 48 Me. 113; Baylor v. Railroad Co., 30 N. J Law, 23; B & O. R. R. Co. v. Striker, 51 Md. 47; Devitt v.
The plaintiff’s intestate had been, at the time of his death, seven months in the employ of the defendant as a brakeman ; he was ah experienced one, having acted as such for many years. The testimony tended to show that while on the top of a coal car, he was hit by a board in the arch of a bridge near "Walling-ford and killed; that a person could not stand on the top of a car and ride through the bridge, the latter being too low; that the train upon which Carbine was employed usually contained coal cars, which were higher than common ones ; that he was-frequently on them,-knew of their height, and had'ridden’on them, passed through the bridge daily, and must have known of its height and condition. The case standing in this position, the jury were told, that if Carbine knew of the defective and dangerous condition of the bridge, he could not recover; that if he engaged as brakeman with knowledge of what his duties were, and continued as brakeman when he knew of the dangers attendant upon his remaining there, then he assumed the risks that he might incur by remaining in the defendant’s employ ; that if lie-elected to continue in his employment after he knew of the dangerous character of the bridge, he continued at his own risk. These instructions correctly state _ the law as applicable to the case at. bar. The plaintiff insists that “ the continuance of the servant in his employment with knowledge of the defect is not necessarily a bar to his recovery.” As an abstract proposition this-may be correct; there may be exceptions to the general rule, cases where a servant would have a right of recovery although he continues in service with knowledge of defects in the instrumentalities of his vocation; he may know of a defect, but not of the hazard likely to arise from it; lie may have known of it, but had reason to believe it had been remedied ; it has been held in some jurisdictions, that if upon notice the master assures the servant that he will remove the defect, and the servant continues in the employment on such assurance, lie is presumed not to have waived the defect, and may maintain an action against the mas
Judgment affirmed.