Coolbroth v. Maine Central Railroad

77 Me. 165 | Me. | 1885

Libbey, J.

It is the well settled law that a servant of mature age and common intelligence, when he engages to serve a master, undertakes as between himself and master, to ran all the ordinary and apparent risks of the service. This rule is so well and uniformly settled that no citation of authorities is needed.

There are exceptions to this general rule, but the facts averred in the plaintiff’s declaration do not take the case out of it. The allegation „ are, in substance, that on the fifteenth day of October, 1879, ho was, and for a long time prior thereto had been, in the employment of the defendants, and for three weeks prior thereto had been stationed at the transfer station near Portland, and required to throw into the train of the defendants going east by said station, mail bags, while the train was in motion, " which service, as was well known to the. defendants and not well known to the plaintiff, was a dangerous service, ’* and on said fifteenth day of October, while in the performance of that service in carefully attempting to throw the mail bags into the mail car While the train was in motion passing- said station, he was thrown down under the train and was injured.

Here are no allegations of any unusual or extraordinary occurrences on that occasion, or of any unusual danger that caused the plaintiff to fall, but at best for him his fall and injury were caused by the ordinary and apparent dangers of the service — apparent to any man of ordinary capacity for such service. True, it is alleged that the service " as was well known to the defendants and not well known to the plaintiff, was a dangerous service, ” but it is not alleged that the defendants did not inform the plaintiff that the service was dangerous — such an allegation is necessary to show the defendants in fault. The fact cannot be implied from the allegation that the dangers were not well known to the plaintiff. But we feel clear that in this case such an allegation would not help the plaintiff. The dangers were as apparent to the plaintiff as to the defendants. If the plaintiff did not understand them when he commenced the service, he had been performing it for three weeks, with all the dangers apparent every time he threw the bags into the car, without protest or complaint; and by so doing must be held to have taken upon himself the hazards which caused his injury. Shanny v. And. Mills, 66 Maine, 420; Yeaton v. Boston & L. R. Company, 135 Mass. 418; Hathaway v. Mich. Cen. R. R. Co. 12 A. & E. R. R. Cases, 249; Thompson on Neg. p. 976, § 7.

Exceptions sustained. Demurrer sustained. Declaration bad.

Peters, C. J., Walton, Ylrgin, Emery and Haskell, JJ., concurred.