65 N.J.L. 656 | N.J. | 1901
Lead Opinion
The opinion of the court was delivered by
In the opinion of a majority of the court the defendant’s fifth request of the learned trial judge to charge the jury was properly refused. This leads to an affirmance of the judgment. As to the other features of the
A briefer, but sufficient, statement of the general legal :rule, and one more directly pointed toward the facts of the (Case in hand, which I find upheld by excellent authority, is the following, viz.: "That an employe assumes all the risks •of his employment against which he may protect himself by -ordinary observation and care.” The rule is stated recently iin a similar form by Thomas’ work on Negligence (ed. 1895) 837, supported by authorities there given. See also Fricker v. Pennsylvania Bridge Co., 47 Atl. Rep. 354 (Penna. Sup. Ct., October, 1900), viz.: “A servant who enters into an 'employment which is hazardous assumes the usual risks of the service, and those which are apparent to ordinary obser.vation;” or again, on p. 841, “a servant who enters upon • an employment from its nature hazardous assumes the usual •risks and perils of the service, and of -the open, visible .structures known to him, or which he must have known had .he exercised ordinary care and observation,” citing Williams v. Delaware, Lackawanna and Western Railroad Co., 116 N. Y. 628, and other cases; or again, on p. 842, "a servant is .chargeable with actual notice of every fact which he could have known had he exercised ordinary care to keep himself ■informed as to matters concerning which it was his duty to inquire.’’ See also Wood M. & S. 732, and 1 Shearm. & II. Negl. (4th ed.) 375. A large number of cases are, on this last page, cited in support of substantially the same rule, including the case of Johnson v. St. Paul, &c., Railroad Co., 43 Minn. 53, and other cases I shall not take space to cite, except Perigo v. C. R. I. & P. Railroad Co., 52 Iowa 276, holding that it is now the established doctrine that an employe, who knows, or, by the exercise of ordinary diligence, could know, ■of any defects or imperfections in the things about which he is employed is presumed to have assumed all the consequences resulting from such defects. I do not find it in any authority •■stated to be the rule of law that the employe or servant of a (railroad company is bound to a higher than ordinary degree
Dissenting Opinion
(dissenting). The plaintiffs intestate, Oscar Durand, was an experienced locomotive engineer in the employ of the Central Railroad Company of New Jersey. At the time of his death he was about sixty-five years old. On the morning of February 4th, 1899, it became his duty to run the engine that drew a passenger train from Jersey City, to Point Pleasant, in the county of Ocean. He .had been engineer of this train for twenty years. It was a clear day. The train was due at Point Pleasant at ten minutes before eleven o’clock in the forenoon, and was a few minutes late. At a point a few hundred yards north of the Point Pleasant station a switch was open, by which the train was turned from the main track to a siding, where the engine collided with ice cars. • By this collision the engineer was killed. The action was brought by his administratrix to recover damages resulting from his death.
It appears that the roadbed, track and appliances at the locality of the accident were the property of the New York and Long Branch Railroad Company, and were used by the Central Railroad Company under a written agreement which, among other things, made the New York and Long Branch Railroad Company liable for any damages occasioned by “the failure of its roadway, or the appurtenances thereto.” The
The main line of the railroad in the vicinity of tire accident runs north and south. It is a double track road. The train was moving along the southbound or west track. At a point about five feet west of the west rail of the southbound track there stood a signaling apparatus, operated in connection with a switch that afforded entrance to and exit from a siding leading to an ice-house that stood on the west side of the railroad. This apparatus was one of a sort in use along the line of this railroad. It appears beyond a reasonable doubt that an apparatus of this kind, when' complete, consists of a central upright rod about seven feet high, to which are attached four perpendicular panels of sheet-iron, at right angles to one another, painted alternately red and white. It results from this arrangement that panels in the same plane are of the same color. White means safety; red means danger. Each panel is two feet six inches long and six inches vtide. When the main line is clear the white panels are presented to the eye of the engineer of an approaching train. When the switch is opened the signaling apparatus is, by the same mechanism that opens the switch, revolved through a quarter of a circle, so that the red panels are presented to the eye of the engineer of an approaching train. The revolution of this particular apparatus, when moved from the
The signaling apparatus was incomplete, for it had only-one red panel. It had been thus incomplete for Several years: The testimony is in conflict as to whether the apparatus; when set for danger, was incomplete on its east side or on its-west side. The trial judge treated this incompleteness as a defect. This was correct. Whether this defect was injurious-to the plaintiff’s intestate is another question. It is apparent that the effect of it, when the apparatus was set for danger,, was to diminish by one-half the area of the warning color. It is apparent, -also, and the evidence shows it, that a switch-tender whose duty it was to manipulate the combined switching and signaling mechanism would naturally know of the-defect in the apparatus; that an engineer whose duty called upon him to use the switch would be likely to notice the-defect, and that an engineer who did not use the switch' would not be so apt to observe that a red panel was missing, especially if it was missing from the side of the apparatus-that, when the southbound track was clear, would face the-south.
This being the situation, the proof on behalf of the plaintiff was addressed to the question whether the defect in the-apparatus was, in a legal sense, injurious to the engineer. Some of the propositions that the evidence for the plaintiff' was adduced to establish were these: That at a point one hundred and twenty-three feet north of the defective signaling apparatus at the ice switch there was, at another switch, a complete signaling apparatus of the same kind, at the same distance from the west rail of the southbound' track; that these two mechanisms were, to the eye of the-engineer of a southbound train, to some extent and at some distance or distances in alignment; that, just to that extent,, the remoter object was concealed by the nearer one; that
. On behalf of the defendant it was further insisted that it •clearly appeared that the defect was obvious, and that the •engineer must be held to have acquiesced in it. But, as 'before stated, it depended on circumstances whether, and to what extent, the defect was obvious to any particular indi- ■ vidual. It -was for the jury to say whether the deceased, if he had been careful, would have known that a red panel w-as •missing. Comben v. Belleville Stone Co. 30 Vroom 226, "The trial judge properly refused a request to charge that, as •a matter of undisputed or indisputable fact, the defect -was iobvious to this engineer.
Another exception brings under review a part of the -charge that, if it stood by itself, might mislead. The trial judge said: “Another allegation of negligence in the deceased is that he did not use the means at his command to •atop the train when he perceived the danger. The defendant’s .counsel put it, when he ought to have perceived the
It is well to say why the refusal of the eighth and ninth requests to charge, and of part of the tenth request, was proper. The judge was asked to instruct the jury that the plaintiff could not recover if the engineer’s failure to use the means at hand for stopping the train permitted the collision to occur with a violence that it would not otherwise
A further and more serious question was raised by the fifth request to charge, which asked for this instruction: “'That even if the switch target was insufficient, yet if, from his running so many years'past it while in. this condition, Mr. Durand knew, or should have known, of its defective condition, he is held in law to have assumed the risk of its insufficiency, and the defendant in that case is relieved from responsibility for it.”. The trial judge refused to charge as requested, and to this refusal an exception was taken, on which error has been assigned. In the opinion of a majority of the court this request was properly refused. I am unable to concur in this conclusion.
An employe assumes the ordinary risks incident to his employment, and also risks consequent upon special dangers known to him, or which he could have discovered by the use of due care. Comben v. Belleville Stone Co., 30 Vroom 226; Western Union Telegraph Co. v. McMullen, 29 Id. 155; Atha & Illingworth Co. v. Costello, 34 Id. 27. This rule applies to the case in hand, for although the engineer was the'servant not of the defendant but of the Central Eailroad Company, yet a contract gave the engineer the right to run over the New York and Long Branch railroad, and made the • defendant specifically liable for damages occasioned by failure of its roadway or appurtenances. The language of the request that is above quoted is elliptical. What is meant by “should have known?” The word “should” in this connection is a word of obligation. The opinion of the court
It is objected that the request does not define the degree of care that the engineer was bound to use. This is true. Is the request therefore erroneous? If, instead of reading, “should have known,” it had read, should, by using due care, have known, it would escape criticism. Yet by the .latter statement, no less than by the former, the degree of care is left undefined. Due care is merely the care that is due, be it much or little. How much is due, in a particular ease, is another thing. A general proposition, complete in itself, is not defective because it is not also a special proposition.
This request bore upon an important phase of the defence of contributory negligence. Although the trial judge refused it, he by no means left the jury without instruction as to the subject of contributory negligence. Indeed, on this topic the charge was unusally full and explicit. The jury could not fail to receive from it a definite and correct impression as to the degree of care that the law exacts from the engineer of a locomotive. I find no warrant for the suggestion that the request, if it had been charged, might have misled the jury in this particular.
From these considerations I conclude that the refusal to grant the fifth request was error for which the judgment should be reversed.
For affirmance—The Ciiiee Justice, Yah Syokel, Poet, Bogert, Yredenburgi-i, Yoori-iees. 6.
For reversal—Ti-ie Chancellor, Dixon, Garretson, Hendrickson, Adams. 5.