297 F. 435 | 2d Cir. | 1924
Lead Opinion
At the time of the injury to the defendant in error, he was engaged in interstate commerce as a conductor on a freight train of the plaintiff in error. This train was being operated by the M. R. tower near Susquehanna, in the state of Pennsylvania. At this point there are two tracks. There had been a heavy snowstorm, which rendered only one of the tracks available for traffic. An order was given to stop at the M. R. tower for further orders as to the track upon which to proceed. This was done. There it was expected that the conductor would receive a written order from the towerman authorizing the train to proceed. After - the train stopped, the defendant in error proceeded to walk through the snow, a distance of approximately 1,000 feet — the length of his train — for the purpose of going to the tower to receive his orders. While so doing, the engineer
To attempt to board the caboose at the steps used for such purpose, and utilizing the handrails, may well have been found by the jury to be the care of an ordinarily prudent person under the circumstances. The estimate of the speed of the train, at the time of his attempting to board
Whether the defendant in error had notice or opportunity to determine with reasonable certainty what obstruction or danger there was to his safety by reason of the close proximity of the pile of snow, was for the jury to say. It cannot be said, as a matter of law, that it was so necessarily obvious to him as to be a danger before he made an attempt to board the train. Each case must be determined upon its own facts, and, in order to charge the risk to the injured employee, time and opportunity for inspection or investigation mtist have been afforded to him, so that the obviousness of the danger which the physical situation presented might be made known to him. The situation is different from that presented in Jacobs v. Southern R. R. Co., 241 U. S. 229, 36 Sup. Ct. 588, 60 L. Ed. 970; where admittedly the employee, who was injured while boarding a'train, came in contact with a pile of cinders. He knew of the existence and location of the pile for some time, and should have appreciated the danger of boarding the train with the existence of the pile of cinders in such close proximity. In that case, the question of assumption of risk was submitted to the jury, and the verdict was for the defendant. That this was a question of fact for the jury, see Chicago R. R. v. Ward, 252 U. S. 19, 40 Sup. Ct. 275, 64 L. Ed. 430, Erie R. R. Co. v. Purucker, 244 U. S. 320, 37 Sup. Ct. 629, 61 L. Ed. 1166, and Chesapeake & Ohio R. R. Co. v. Proffitt, 241 U. S. 462, 36 Sup. Ct. 620, 60 L. Ed. 1102.
Judgment affirmed.
Dissenting Opinion
(dissenting). The rule is well settled that “a servant assumes extraordinary risks incident to his employment or risks caused by the master’s negligence which are obvious or fully known and appreciated by him.” Boldt v. Pennsylvania R. R., 245 U. S. 441, 38 Sup. Ct. 139, 62 L. Ed. 385. See, also, Pennsylvania Co. v. Nelson, 259 Fed. 156, 170 C. C. A. 224; McAdoo v. Anzellotti (C. C. A.) 271 Fed. 268.
There are instances, probably many, where the evidence produced leaves it a question for the jury whether the risks were or were not obvious. But, where the evidence 'is uncontradicted, it is for the court to apply a rule of conduct, and therefore for the court to say whether the risk was or was not obvious. I think this risk was obvious.