61 N.Y.S. 202 | N.Y. App. Div. | 1899
Lead Opinion
It is a fact of which courts will take notice that switches are not only necessary appurtenances to all steam railroads, but that their general use has a tendency to increase quite materially the risk which attends the operation of such roads. It was probably in recognition of this fact that the defendant made some attempt to' guard against the contingency which was liable at any time to occur •at this particular switch by attaching thereto certain signals, the import of which was doubtless well understood by all its employee's, ■and if in making this provision it exercised a reasonable degree of-care for the safety ,of its employees, it did all that could be legally •required of it. But.can it be said, as a matter of law, that this was ■done ? It is a conceded fact in the case that this switch was so located with' reference to the' water tank some fifteen or twenty feet distant therefrom as to be of little or no practical benefit as a ■signal of warning to the defendant’s employees in charge of a train approaching it upon the south-bound track, for the reason that it could not be seen for a distance of more than sixty feet, and it was fairly demonsti’ated by this very catastrophe that a train running at the rate of thirty-five or forty miles an hour could not be stopped within that distance, even by the use of what is known as the u emergency brake.”
The evidence also tends to show that no necessity existed for. thus
That the misplacement of the switch by some person for whose criminal conduct the defendant, so far as appears, is in nowise responsible, was ,the moving or proximate cause of the death of the plaintiffs’ intestate there can be no doubt; but it sometimes happens that several causes concur to produce certain results, and in such case any one of them may be termed “ proximate,” provided it appears to have been an efficient cause. (Ring v. City of Cohoes, 77 N. Y. 83; Phillips v. N. Y. C. & H. R. R. R. Co., 127 id. 657.)
In this case, as has been suggested, the train in’ question was, by' reason of the misplaced switch, certain to come into contact with the freight cars which stood upon the siding, if the rate of speed at which it approached was maintained ; but, on the other hand, it is by no means' certain that the accident could not have been avoided, notwithstanding the condition of the switch, if its location had been different. Indeed, a nonsuit having been granted, we think it may properly be assumed, for the purposes of this review, that if the switch had not been pretty effectually hidden from view by the water tank the plaintiffs’' intestate would have seen the danger signal attached thereto at a distance of at least 600 or 800 feet, which would have afforded him ample opportunity to stop his train before it left the main track; and if this be so, then the jury, upon the evidence now before us, would have been justified in finding that the location of the switch, in such close proximity to the water tank, was an efficient and proximate cause of the accident which resulted in the death of the plaintiffs’intestate.
But this rule has no application where the master has not fulfilled the obligation which rests upon him'to exercise a reasonable degree of care in furnishing his servants a safe place in which, and suitable appliances and machinery with which, to perform the service required of them. (Ellis v. New York, L. E. & W. R. Co., 95 N. Y. 546; McGovern v. Central Vermont R. Co., 123 id. 280; Bennett v. Long Island R. R. Co., 21 App. Div. 25.)
It would seem to follow, therefore, that if, in this case, the jury might find that the switch in question was improperly located, or,. in other words, that the defendant, in so locating the same as to render the danger signal thereon inefficient for the purposes for which it was intended, was guilty of an omission of duty which' it owed to the deceased in common with its other servants engaged in the. performance of like duties, it cannot be said, as a matter of law, that the risk thereby involved was- one which was assumed by the deceased.
It is urged, however, that the plaintiffs’ intestate knew, or was bound to know, of the dangerous location of the switch; and that, consequently, it may be asserted that if, with this knowledge, he ,elected to remain in the defendant’s employ he thereby assumed this additional and unnecessary risk of his employment.
Undeniably it does appear that the deceased had been in the defendant’s service a number of years, during which time he had frequently had occasion to pass this switch, and, consequently, it may doubtless be assumed that he was aware of its location, and to some extent, at least, of the incidental danger which was liable to result' therefrom. It likewise appears that one of the defendant’s rules required engineers to approach switches with great care, having tlieir
It is not difficult to conceive of instances where, if a servant accepts or continues in service with knowledge of the character and position of structures from which he is liable, to receive an injury, he cannot with any propriety hold the. master liable, and of this «lass of cases that of Gibson v. Erie Railway Co. (supra) is a type; in that case the roof of a depot building projected so near the defendant’s track that a conductor, in attempting to climb over the top of a car while his train was underway, was strucK and killed. But it is to be observed that in this instance the peculiar character of the dangerous structure was perfectly patent; that the injured party was familiar with it, and that when struck he was not engaged in any duty which distracted his attention from the danger which confronted him.
We believe it to be settled, however, by repeated adjudications, that a servant is not bound at all times and under all circumstances to be mindful of the dangers which surround him while engaged in the performance of his duty, even though he may be well aware of their existence.
In the case of Wallace v. C. V. R. Co. (138 N. Y. 302) a brakeman, while in the performance of his duty upon the top of a car attached to a moving train, was struck by a bridge which extended ■over the. track. He had been in the defendant’s employ for several weeks, and was perfectly familiar with the character and location of the structure with which he came into contact, but it was, held that he could not, as a matter of law, be charged with carelessness because he did not bear constantly in. mind its precise location. So in the case of Benthin v. N. Y. C. & H. R. R. R. Co. (24 App. Div. 303), and in that of Brown v. N. Y. & H. R. R. R. Co. (42 id. 548), both of which were recently decided by this court, it was held that a fireman while engaged in the performance of some duty which distracted his attention could not, as a matter of law, be adjudged guilty of contributory negligence because he for the time
The sum of the matter consequently is that upon the evidence in the case, as it stood when the nonsuit was granted, it-was, as we think, for the jury to say whether the defendant was guilty of an omission of duty which it owed the plaintiffs’ intestate in locating the switch where it did, and, if so, whether such omission was an efficient proximate cause of the accident which happened on the night of December first. Furthermore, the jury should have been permitted,, in the event that these two propositions were resolved in favor of the plaintiffs, to determine whether, in the circumstances of the case, the plaintiffs’ intestate assumed any incidental- risk which resulted from
All concurred, except Smith, J., dissenting.
Dissenting Opinion
I cannot concur in this decision. In the case of Sweeney v. Berlin & Jones Envelope Co. (101 N. Y. 520) the rule as stated in the head note reads: “ A servant accepts the service subject to the risks incident to it, and where, when he enters into the employment, the machinery and implements, used in the master’s business are of a certain kind or condition and the servant knows it, he voluntarily takes the risk resulting from their use, and can make no claim upon the master to furnish other or different safeguards.” In the case of Hickey v. Taaffe (105 N. Y. 26) the head note reads: “An employee, in accepting service with a knowledge of the character and position of the machinery he is required to operate, takes the risk of such perils as are incident to the use of the machinery in its then condition, and are apparent, and he cannot call upon the employer to make alterations to secure greater safety.” It is idle-to cite further authority for a doctrine which is now firmly grounded in the law of negligence. I am unable to see why the case at bar does not come within the very letter of the rule stated in these cases. The warning signal upon this switch, indicating whether it was open or shut, could only be seen for sixty feet by reason of the obstruction of this water tank. This condition had existed since 1881, more than fourteen years. The danger was apparent and the risk perfectly obvious. The plaintiff’s intestate had been upon the road since 1881. He constantly passe'd and repassed this point. That he .was perfectly familiar with this situation and with such danger as it involved cannot be questioned, and it is not questioned in the prevailing opinion. Upon what principle or upon what authority is it sought to relieve him from the legal responsibility of having assumed the risk ?
In the prevailing opinion the general rule is recognized that the
Nor is the position of the court sustained by authority. There are some cases in which it is said that the doctrine of assumed risks is subject to the qualifications. stated in the prevailing opinion. Those, however, are not cases where the assumed risk has been from permanent existing structures, and the danger involved is obvious. The distinction .is clearly pointed out in Davidson v. Cornell (132 N. Y. 234), in which Judge Bradley says: “It is, however, urged, by the defendants’ counsel that, although they may not have been as firmly supported as they should have been,' the plaintiff, having been engaged on the work for considerable time, knew the situation of the girders, that they were neither braced nor bolted at their ends to the brackets on the crossbeams, and assumed such hazards as were incident to the operation of the platform on which he was engaged in the service. It is, as a general rule, true that a servant entering into- employment which is hazardous assumes the usual xrisks of the service, and those which are apparent to ordinary obser
The distinction is again referred to in the case of Knisley v. Pratt (148 N. Y. 378).
Again, in the prevailing opinion, it is said that the servant is not bound at all times and under all circumstances to be mindful of the •dangers that surround him while engaged in the performance of his ■duty, even though he may be well aware of their existence. If the •doctrine of the assumption of obvious risks has any vital force, how can it matter whether or not the servant has in mind, the danget. This fact, clearly, has significance if the question be one of contributory negligence. If it be one of the assumption of obvious risks, it is clearly immaterial. Under that doctrine, the master is absolutely relieved from liability resulting from that risk. There is no question of the care or the negligence of the employee. It is a contract •exemption absolute. This proposition hardly needs authority. In Louisville & Nashville R. Co. v. Orr (84 Ind. 50) the rule was stated that an assumption of the risk by the servant will exonerate the master from liability, although the servant was free from negligence. In Morris v. Gleason (1 Ill. App. 510) it was held that, although an explosion was not caused by the fault of the injured servant, yet, if he was aware that the boiler was defective, he cannot recover, whatever care he took to prevent the explosion or avoid -the effect thereof.
These cases are clearly distinguishable from the case at bar. Here the structures were permanent. They had existed there in the same condition for many years. The intestate knew of their existence. To hold the defendant liable for an injury from a risk which the plaintiff himself has understandingly chanced, would, in my ’judgment, do violence to a well-settled principle of law.- I think the judgment was right and should be affirmed.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.