Farley v. New York, New Haven & Hartford Railroad

Prentice, C. J. The court assigned two reasons for its direction of a verdict for the defendant, to wit: (1) That the plaintiff had failed to present evidence from which the jury could reasonably have found that the defendant was guilty of negligence in the premises; and (2) that the evidence in support of the defense of assumption of risk was such that it could not reasonably have been found that the risk was not assumed by the *413 intestate’s continuing in his employment with full knowledge and comprehension of it. The last of these reasons is so clearly sound and sufficient that we have no occasion to inquire into the other. The Federal Employers Liability Act (35 U. S. Stat. at Large, 65) under which this action was brought, did not abolish the defense of the assumption of risk, save in cases where the violation by the carrier of some Federal statute, enacted for the safety of employees, contributed to the injury or death of the employee. Seaboard Air Line Railway v. Horton, 233 U. S. 492, 503, 34 Sup. Ct. Rep. 635. As bearing upon the question of the intestate’s assumption of the risk which caused his death, the pertinent facts lie outside of the realm of dispute or uncertainty. They show that Bottomley had full knowledge of all the physical factors in the situation. As an engineer, he was familiar with engines and tenders and their proportions. The engine he was driving was one of moderate size, and of a type long in use. Its tender, whether of the larger or smaller size, was one in use with this type of engine. It was neither special nor unusual. In his years of experience, for the most part confined to this section of the road, and his recent months of frequent service upon it as engineer, he must have become acquainted with the existence of the many overhead bridges which here span the tracks, with the narrow space between bridges and tops of engine and tender, and with the manner in which the electric service wires were strung in carrying them under the bridges. These conditions were apparent to casual observation; they had remained unchanged for years; and they were closely related to the performance of his duties. lie must also have known that these wires were electrically charged for the operation of trains. As a locomotive engineer of experience, living in this age of the *414 world, he, untold and unwarned, must have been sufficiently intelligent and informed to know of the latent danger which lurked in the wires so charged to one who should come into contact with them or into their immediate vicinity, and of the extremity of that danger. But that matter aside, the knowledge of the danger had been so directly and forcibly brought home to him through the notices and warnings given to him by the defendant, that he could not have failed both to know the danger to his life that there would be in permitting himself to come into contact with or near to one of the wires, and to comprehend the character and extent of that danger. This being so, he certainly knew and comprehended the risk incident to his employment. No one could well be expected to have better knowledge or a more adequate appreciation. Possessed of this knowledge and appreciation, he had for years chosen to continue in his employment. By so doing he assumed its risk, which, during these years, had remained unchanged, and been unenhanced by any new act of the defendant which could by possibility be imputed to it as negligence. Baer v. Baird Machine Co., 84 Conn. 269, 273, 79 Atl. 673. “When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arise out of the master’s breach of duty.” Seaboard Air Line Railway v. Horton, 233 U. S. 492, 504, 34 Sup. Ct. Rep. 635. There is no error. In this opinion the other judges concurred.