19 R.I. 587 | R.I. | 1896
This is an action of the case for negligence. Tlie accident which, caused the injuries to the plaintiff occurred about two o’clock in the afternoon, on December 22, 1894, in the defendant’s freight yard in Providence, where the plaintiff had been employed as a brakeman in the making’ up of freight trains for two or three months previously. Just prior to the accident the switching engine, with the plaintiff riding on the footboard, on the rear of the tender, had backed down in a southerly direction on a side track to a point opposite the freight house, for the purpose of taking on some cars standing on the side track. The plaintiff stood on the left hand end of the foot-board as the engine was backing down, looking toward the cars which were to be coupled to the engine. When the engine had reached the cars the plaintiff made the coupling, gave the signal to the engineer to go ahead, and started to climb on to the top of the car next to thq engine, his duty requiring him to be in that position so that he could transmit to the engineer the signals which should be given to him by the conductor. There was no ladder on the end of the car, and, in order to climb to the top of it, the plaintiff stepped from the footboard on to the draw-bar of the tender, thence obliquely to the left on to the corner of the car, at the same time taking hold of a round of the ladder on the westerly side of the car near the end, and swinging himself around the car, and began to ascend the ladder. Meanwhile the train had started, in obedience to the signal given to the engineer to go ahead ; and when the plaintiff had so far ascended the ladder that his left hand was on the topmost round, and he was reaching up with his right hand for the handle on the top of the car, his back came in contact with a telegraph pole, belonging to the defendant and used to sup
The defendant contends, in support of its petition, that it had a right to locate its telegraph poles, switch stands, bridge abutments, station platforms and other similar structures, near to its tracks, although the location and maintenance of these structures in close proximity to its tracks might involve the risk, of injury to its employees; that, as the danger of contact with such structures is a matter of common knowledge, and as they are objects plainly visible, their presence is at once suggestive of danger, and therefore that the risk of being hit by a pole was an obvious danger, and one assumed by the plaintiff when he entered into the defendant’s service. There are cases which apparently support these contentions, but they do not commend themselves to our judgment. We do not think that a different rule should be applied to railroad corporations from that which is established in reference
It is undoubtedly true that a servant assumes all the ordinary risks and perils incident to the employment, and also all risks resulting from the non-performance of the master’s duty of which he has knowledge, or of which he has competent means of knowledge, if he continues in the employment after such knowledge or means of knowledge, unless induced to remain by promises of the master to remedy the defect. But a telegraph pole is not in itself dangerous. It becomes so, and therefore a defective structure, only when placed so near the track that it is a source of danger to the servant in the performance of his duty. If the servant has knowledge of its dangerous proximity, or if by reasonable observation he could have ascertained its dangerous proximity, it is undoubtedly to be regarded as an obvious danger, the risk of which is assumed by continuing in the service. Otherwise it is not to be so regarded.
It is urged that if the proximity of the pole to the track which made it' dangerous was not sufficiently obvious to the plaintiff to put him on his guard against injury from the pole, it was not sufficiently obvious to the officers of the defendant for them to observe it in the exercise of reasonable care, and hence that it cannot he held that the defendant
The defendant further contends that the plaintiff was guilty of contributory negligence in attempting to climb the ladder of the car while the train was in motion, without looking to see whether he was in danger from the pole, instead of climbing to the top of the car before giving the signal to the engineer to go ahead, or remaining on the footboard of the tender until the car had passed the pole. But if the dangerous proximity of the pole to the track was not so obvious as to be discoverable by observation, and the plaintiff had no notice of the danger, we do not think that it can be held, as a matter of law, that he was guilty of negligence iii not looking forward to see whether be was in danger from the pole before starting to climb the ladder. If he had no reason to apprehend danger from it, there was no reason why he. should have been on his guard against it. He had a right to rely on the presumption that the defendant had performed its duty in locating the pole so that it should not endanger the safety of its employees, until he liad been apprised iu some way of the contrary. If the exigency of the situation required the placing of a structure in such a position as to make it dangerous, it is not too much to require of a railroad company that it should give notice of the danger to its employees. Darling v. New York, Providence & Boston R. R. Co., 17 R. I. 708 ; Scanlon v. Boston & Albany R. R. Co., 147 Mass. 484; Johnson v. St. Paul, Minneapolis & Manitoba Ry. Co., 43 Minn. 53 ; Hawkins v. Johnson, 105 Ind. 29 ; Baker v. Maryland Coal Co., 35 Atl. Rep. 10.
The defendant contends that the Common Pleas Division erred in admitting the testimony of Latham, a civil engineer, for the purpose of proving the distance between the pole and the side of the freight car, the car not being the one on which the plaintiff was at the time of the accident. The plaintiff had no means of identifying the particular car on
We do not deem it necessary to examine seriatim the several requests for instructions made by the defendant, and the rulings on these requests by the Common Pleas Division. The requests were inconsistent with the principles which seem to us to govern the decision of the case, and we think that the instructions of the court to the jury were sufficiently favorable to the defendant.
The newly discovered evidence is all directed to the question of the extent of the plaintiff’s injuries. As the verdict was only for $1500, and it is not denied that the plaintiff was confined to his bed for five or six weeks, during which time he suffered much pain, we do not think that the newly discovered testimony, which goes merely to his improved condition subsequently to that period, is of such importance that it would be likely to lessen the verdict if a new trial were granted.
New trial denied, and case rerhitted to the Common Pleas Division with direction to enter judgment for the plaintiff on the verdict.