22 N.Y.S. 100 | N.Y. Sup. Ct. | 1893
This action was to recover damages sustained by the death of the plaintiff’s intestate, alleged to have been caused by the defendant’s negligence in not blocking a frog in which the intestate’s foot was caught, and he was run over and killed by the cars. He was employed by the defendant osa brakeman on its railroad, and engaged in coupling cars at its station at-Clyde, at the time he was killed. The accident occasioning his death occurred December 14, 1889. The evidence tended to show that it occurred by the intestate’s foot being caught between the rails or tracks near or in the frog which connected one of the main tracks with a side track. The plaintiff claimed that there should have been blocks of wood placed in the opening of the frog, or between the rails, and that, if blocked, the accident would not have occurred. The plaintiff proved that the defendant had blocked some of its frogs in its larger freight yards, where much shifting and coupling was done, but had never blocked any at the other stations along its road, including the one where the accident occurred. The plaintiff’s intestate had been in the employ of the defendant during a portion of each year for several years prior to the accident, usually commencing his work in the
The only ground upon which the plaintiff bases his right to recover is the omission of the defendant to block the frog at the place where the accident occurred. As no special reason was shown why the frog at that place should have been blocked that did not equally apply to every other on defendant’s road, the question presented is whether it owed to its servants the duty of blocking them at all the stations or side tracks.
A master, in the performance of his duty to his servants, is not bound to furnish the best known appliances and machinery, or the safest place in which to do their work, but such only as are reasonably safe. The test is not whether the master has omitted to do something which he might have done, but whether the machinery, appliances, and place where the work was to be done were reasonably safe and proper for the use to which they were applied. Burke v. Witherbee, 98 N. Y. 562; Marsh v. Chickering, 101 N. Y. 396, 5 N. E. Rep. 56; Bajus v. Railroad Co., 103 N. Y. 312, 8 N. E. Rep. 529; Stringham v. Hilton, 111 N. Y. 188, 18 N. E. Rep. 870; Kern v. Refining Co., 125 N. Y. 50, 25 N. E. Rep. 1071. A servant who enters into an employment which is hazardous assumes the usual risks of the service, and those which are apparent to ordinary observation. If he accepts service with knowledge.of the character and position of the machinery, appliances, and place where he is to do his work, he takes the risk of such perils as are incident to their use in their then condition, and are apparent, and cannot call upon the master to make alterations to secure greater safety. Gibson v. Railroad Co., 63 N. Y. 449; De Forest v. Jewett, 88 N. Y. 264; Powers v. Railroad Co., 98 N. Y. 274; Sweeney v. Envelope Co., 101 N. Y. 520, 5 N. E. Rep. 358; Anthony v. Leeret, 12 N. E. Rep. 561; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. Rep. 286; Williams v. Railroad Co., 116 N. Y. 628, 22 N. E. Rep. 1117; Davidson v. Cornell, 132 N. Y. 228, 30 N. E. Rep. 573. When an appliance oi machine not obviously dangerous has been in daily use for a long time, " and has uniformly proved adequate, safe, and convenient, its use may be continued without the imputation of negligence or carelessness. Stringham v. Hilton, 111 N. Y. 188, 18 N. E. Rep. 870. A master’s liability to his servant for injuries received in the course of his employment is based upon the personal negligence of the employer, and the evidence must establish personal negligence on his part, or what is equivalent thereto, to justify a verdict; and he is entitled to the benefit of the presumption that he has performed his duty until the contrary appears. Cahill v. Hilton, 106 N. Y. 512, 13 N. E. Rep. 339. In Appel v. Railway Co., 111 N. Y. 550, 19 N. E. Rep. 93, the plaintiff’s intestate was a switchman in defendant’s yard, and, while engaged in his employment, caught his foot in a frog, and was run over and killed. It was claimed that blocks of wood might have been placed in the openings of the frog, and thus have prevented the accident. It appeared that decedent had been in defendant’s employ for some years, and for quite a length of time in and about the yard where the accident hap
Applying the principles of these authorities to the facts in this case, we do not see how the judgment can be upheld. That the tracks, cars, and other machinery in use upon the defendant’s road at the time and place of the accident were not proper, or in a proper state of repair, is neither claimed nor proved. As we have already seen, there was no evidence that blocks were in general use by the defendant, or that they were in general or even limited use upon other railroads, or that any accident had ever occurred which was occasioned by the omission to block the frogs on the defendant’s road, or that any such accident had ever occurred from that cause on any other road, or that it was necessary or proper to block the frogs on a railroad. While a court might perhaps take judicial notice that frogs on a railroad constitute an element of some danger to persons walking over them, it cannot, we think, assume that the mere operation of a railroad without blocking all the frogs on its line constitutes negligence. Therefore, in the absence of proof that such blocking was necessary, or at least proper, or in general use upon other roads, neither a court nor a jury would be justified in finding that such an omission constituted negligence which would entitle an employe to recover for injuries sustained by having caught his foot in a frog. There is nothing in the evidence, or in the construction of a frog, which would justify -a jury in finding that it was an unsafe or dangerous appliance, when