29 N.Y.S. 1126 | N.Y. Sup. Ct. | 1894
This is an appeal by the defendant from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendant for the sum of $5,386.74, damages and costs. The action is on account of injuries received by the plaintiff in attempting to couple cars in the freight yard of the defendant at Weehauken, on the 27th day of January, 1892. The plaintiff was employed by the defendant as a brakeman, and he had been so employed for about a month, working the most of the time in the freight yard at Weehauken, making and breaking up trains and placing cars. In performing such services, it was his duty to couple and uncouple cars. At the time of receiving the injury, a car that had arrived in the freight yard had just been weighed and moved from the scales, and stood motionless upon the track. This car was what is known as a “crippled car.” At one end of the car the extension block, bumpers, and drawhead were all gone; there was no link nor link pin; there was a log chain attached to what is called the “kingbolt,” under the car, which came to the end of the car, dropping down therefrom, and dragging on the ground about 18 inches, which chain was used to couple the car with other cars in place of the coupling link. The absence of the extension block, bumpers, and drawhead from this car permitted the drawhead of a sound car coming in contact with the crippled car to pass underneath it, so that there would be only a space of about four inches between them. The drawhead is the iron projection at the end of the car into which the coupling link is inserted. It is customary, upon the arrival of cars into the freight yard, to inspect them, and any that are found crippled, or in any respect defective, to mark them with chalk. There is a controversy in this case as to whether the car in question was so marked. The plaintiff claims that he looked, and did not see any marks. The defendant’s witnesses say that the car was plainly marked on both sides. While it seems to me that the evidence that the car was marked largely preponderates, still it must be assumed, for the purposes of this discussion, that the jury found that there were no marks on the car indicating that it was crippled or defective. While this crippled car was standing upon the track, another one had been weighed, and moved from the scales, and the plaintiff proceeded to couple it to the crippled car. His testimony is that he walked in front of the sound and moving car towards the crippled car; that he went in between them when they were eight feet apart, and upon their coming together his arm was caught between them and badly crushed. The exact manner in which the accident happened does not clearly appear. The plaintiff testifies that at the point where they came together there was a curve in the track, bringing the sides of the cars on the inside of the curve close together, the distance between them widening towards
The plaintiff, in entering the defendant’s employ, assumed the ordinary risks incident to the service; and in continuing in its-employ in the Weehauken yard, and rendering the services heretofore enumerated, without objection or complaint, he assumed the ordinary risks of such service there. But the defendant cannot rely upon such assumption of risks on his part, unless it takes1 reasonable precautions to insure his safety while in the performance of his duty. Crown v. Orr, 140 N. Y. 450, 35 N. E. 648; Ford v. Railroad Co., 124 N. Y. 493-498, 26 N. E. 1101. Among the reasonable precautions that it was the duty of the defendant to-take to insure its employés’ safety was the inspection of cars to ascertain their fitness for service. Gottlieb v. Railroad Co., 100 N. Y. 462, 3 N. E. 344; Goodrich v. Railroad Co., 116 N. Y. 398r 22 N. E. 397. And within the principle of the last-cited cases-it will be assumed that the defendant was negligent in this case in leaving the car on the track in its crippled condition without, being marked by it as a crippled or defective car. But, while the defendant owed to the plaintiff the duty of supplying him a reasonably safe place in which to work, and, as a part of that duty, the inspection and marking of its defective cars, its duty in that respect is measured by the danger to be apprehended and avoided, Goodrich v. Railroad Co., Id. The plaintiff, in turn, owed a duty to himself and to the defendant, which was also to be measured by the dangers of the place where he was at work, and the risks-to be encountered. The complaint of the plaintiff is that he was not notified of the dangerous condition of the car, by reason of its' not being marked; that no notice was given by the defendant of the danger to which he was exposing himself by endeavoring to couple these cars. It needs no argument to show that if the-plaintiff had actual notice of the dangerous condition of the car in question, and the risk to which he was exposing himself, and he then went on voluntarily and encountered the danger, he would! have no cause of action against the defendant for the resulting injury. The fact that the defendant had neglected its duty would!
