19 R.I. 594 | R.I. | 1896
This is an action of the case for negligence. The accident by which the plaintiff was injured occurred December 8, 1893. The plaintiff had been a conductor of passenger trains in the service of the defendant for a number of years. For several years prior to the accident it had been a part of his duty to run during alternate weeks a passenger train, one trip daily, over the Pawtuxet Valley branch of the defendant’s road, from Auburn to Hope and from Hope to Auburn. On the date named, he left Providence on his train at 2.30 P, M. and, on arriving
We do not think that the verdict was against the evidence. The erection and maintenance of the telegraph pole so near to the side track as to expose its employees to the risk of injury while performing their duties was negligence on the part of the defendant. Whipple v. New York, New Haven & Hartford R. R. Co,, ante, p. 176, and cases cited. The question whether the plaintiff was guilty of contributory negligence in not looking forward to see if there was any obstacle that might hit him in attempting to get on to the
We do not think that the plaintiff is to be held to have assumed the risk of injury from the pole. The risk was not one incident to the employment, because the defect — the location of the pole dangerously near to the side track — was a breach of the defendant’s duty so to locate the pole that it should not be dangerous to its employees. The risk of injury from such a defect is not assumed by the employee unless he has knowledge or competent means of knowledge of it, and continues in the employment. Whipple v. New York, New Haven & Hartford R. R. Co., ante, p. 176 ; Scanlon v. Boston & Albany R. R. Co., 147 Mass. 484 ; Lovejoy v. Boston & Lowell R. R. Co., 125 Mass. 79 ; Baker v. Maryland Coal Co., 85 Atl. Rep. 10. As already stated, the plaintiff had never been on the side track, did not know of the location of the pole, and had never had his attention directed to it. As a passenger conductor his duties were inside the train, except when at a station, and he did not therefore have the opportunity to observe the location of structures along the track which a freight brakeman, whose
We do not think that the Common Pleas Division erred in excluding the testimony of Edward P. Dawley, a civil engineer in the employment of the defendant, as to other dangerous obstructions on the line of the railroad over which the plaintiff was accustomed to run his trains. It was not proposed to show in connection with it that the plaintiff had knowledge that these obstructions were dangerous, and for the reasons already stated we do not think that they were risks assumed by him as incident to the service.
We think the instructions to the jury were sufficiently favorable to the defendant.
New trial denied, and case remitted to the Common Pleas Divison with direction to enter judgment on the verdict.