72 N.J.L. 358 | N.J. | 1905
The opinion of the court was delivered by
The plaintiff’s intestate was employed by the defendant as a track laborer. On March 18th, 1902, he was working on the tracks of the company at Waverly. There are several paralleling tracks at this point. At the time he was killed the deceased was working upon track No. 5. The gang of which the deceased was a member was worldng on tracks Nos. 3, 4 and 5. Deceased was engaged in sorting loose stones from the earth on track No. 5,.which was the drill track, and throwing the stones, when sorted, on track No. 4, which is the westbound passenger track. While at work the deceased was necessarily bent over. He could not, of course, devote his attention to his work and the approaching trains at the same time. The proof in the cause shows that there was a foreman and an assistant foreman present, who did not actually engage in the work, but only acted as superintendents. The proof was that the foremen of gangs of men at work, as the deceased and his fellow-laborers were at the time he was killed, were accustomed, upon the approach of a train, to call out to the men, “Look out on track No. 3 !” “Look out on track No. 4!” or whatever track it happened to be upon which the train was approaching. It is clear that the men relied upon this warning, and it is equally clear that it was the custom of the company to give it. It is conceded that when the deceased was killed by the backing upon him of a freight engine on track No. 5 no such warning was given. Both the foreman and his assistant were absent at the time. They were at the “shanty,”
On this state of facts we think that the deceased had a right to rely upon the fact that, if there was anjr danger from an approaching train the customary warning would be given. There was no error in the refusal to nonsuit or to direct a verdict for the defendants.
Where a workman in the discharge of his duty has placed himself in a position of probable danger, and where -he has a right to expect a warning before the danger becomes actual, and he is injured because no warning was given, the question whether he assumed the risk or was guilty of contributory negligence cannot be decided by the court. Albanese, Administrator, v. Central Railroad Co., 41 Vroom 241; Harmer v. Reed Apartment Co., 39 Id. 332.
Under the proof this case cannot be distinguished on principle from that of the Belleville Stone Co. v. Mooney, 32 Vroom 253. In that case it was held, where the giving of a warning was embraced in the duty owed by the employer to the employe in order that the place where the employer sets the employe to work may be kept safe, that the failure of the foreman to discharge this duty carefully was imputable to the employer, and that such failure was not one of the obvious dangers of which the employe assumed the risk.
It was strongly contended in this case that the danger to the deceased of being run over was clearly an obvious one. On this point, in Belleville Stone Co. v. Mooney Mr. Justice Dixon says: “Nor will the doctrine that servants assume the obvious risks of their employment save the defendant in this ease, for that doctrine is not applicable to risks arising from negligence in the discharge of the master’s duty to his servant. No doubt the plaintiff took the risks of the system under
No error is found in the record, and the judgment of the Essex Circuit Court is affirmed.