Murphy v. Grand Trunk Railway Co.

Young, J. The only ground on which the plaintiff claims to recover is the defendants’ failure to furnish him with suitable instrumentalities with which to do his work; so the only questions raised by the defendants’ motion are whether there was any evidence from which it could bo found (1) that the defendants’ failure to equip this car with a suitable coupler was the legal cause of *20 his injui-ies, (2) that the danger from using this coupler in the condition it was in at the time of the accident was not a risk he assumed, and (3) that he was free from fault at that time. Only-one of these questions will be considered, for although whether the plaintiff was free from fault and whether the cause of a dangerous situation is the legal cause of an accident that results from that situation are both questions of fact (Ela v. Cable Co., 71 N. H. 1; Aldrich v. Railroad, 67 N. H. 380; Nashua Iron and Steel Co. v. Railroad, 62 N. H. 159, 164), it will not be necessary to examine the evidence upon either point; for if it is conceded that the defective coupler was a contributing cause and not merely the occasion of the accident, and that he was free from fault, he cannot recover because it conclusively appears that the danger from using the coupler in the condition it was in at the time of the accident was a risk he assumed. The law imposes on the servant the risk of all the dangers of the employment of which he either knows, or would have known if he had used ordinary care. This includes the risk of the dangers which arise from the use of defective instrumentalities and from the negligence of fellow-servants. Galvin v. Pierce, 72 N. H. 79; Hill v. Railroad, 72 N. H. 518; O'Hare v. Company, 71 N. H. 104; McLaine v. Company, 71 N. H. 294; Fifield v. Railroad, 42 N. H. 225, 240. Although a servant does not assume the risk of a danger of which he did not learn until so soon before he was injured that after learning of it he could not have left the service in safety ( Olney v. Railroad, 71 N. H. 427), it is entirely immaterial when he learned of the danger, if after he knew of it he could have left the service. If he remains after he knows of it, the law imposes on him the risk incident to remaining. Henderson v. Williams, 66 N. H. 405. Neither is it material how the dangerous situation was created; for if a servant continues with the master after he knows of the danger, the law imposes on him the risk incident to remaining, whether the dangerous situation arose from natural causes, or was created by the master’s negligence. Leazotte v. Railroad, 70 N. H. 5. The breaking apart of the train caused the plaintiff no injury. After the several sections came to rest he stepped to the ground unharmed. The original, dangerous situation created by the defendants’ negligence — the operation of a train containing cars connected by a defective coupler — was ended. Assuming that the separated train also constituted a dangerous situation due to the defendants’ negligence, the plaintiff ran no risk unless he elected to engage in the work of reassembling the train. If the danger was due to the defendants’ failure to comply with the obligations *21 of their contract, the plaintiff, having performed his duty of protecting his train under the rules, would be under no obligation to engage in the work of correcting the results of their negligence, unless his contract of employment required him to reassemble the train regardless of the cause of its breaking apart, lie would have botli a legal reason and a physical opportunity to refuse the service. Whether or not it was his duty as a conductor to endeavor to reassemble the train, broken apart because of the defendants’ negligence, is immaterial. If he remained because he was willing to waive the defendants’ breach of contract, or if it was because his contract required him to remain under the circumstances, the result would have been the same. In either event the law would impose on him the risk of all the dangers incident to assembling his train in the condition the cars were in at that time, of which he either knew, or would have known if he had used ordinary care. So the only question which it is necessary to consider, to determine whether he assumed the risk, is whether or not he knew of the danger which was the immediate cause of his injury. The evidence shows that the direct causes of his injury were the brakeman’s failure to find out where the plaintiff was before he gave the engineer the signal to start his engine, the engineer’s failure to ring the bell before he started, and the plaintiff’s failure to give the engineer a stop signal; for, notwithstanding the defective coupler, no accident would have happened if he had given the engineer a stop signal before he stepped between the cars, or if the engineer had rung his bell before he started his engine, or if the brakeman had found out where the plaintiff was before he gave the engineer the signal to go ahead. All these concurred, both in point of time and causation, to produce the injury, and there is no evidence from which it coaid be found that the plaintiff did not know of and fully appreciate the danger that would naturally result from the happening of any one or all of them; so it must be held that the causes of his injury were the risks he assumed. Conceding that the defective coupler was a contributing cause and not merely the occasion of the accident, there is no force in the plaintiff’s contention, that because he did not have actual knowledge of the particular defect which caused the coupler to separate and wreck the train he did not assume the risk incident to using the coupler in the condition it was in when the accident happened; for when it is a person’s duty to know anything, the law will charge him, not only with all the knowledge he has in respect to the matter, but also with all he would have had if he had used ordinary care. Davis v. Railroad, 70 N. H. 519. The *22 rules made it the plaintiff’s duty when there was an accident to find out what caused it. So it was his duty to examine the couplers which had parted before he used them, and there is no evidence from which it could be found that if he had used ordinary care in examining them he would not have discovered the defect; so he must be held to have known that the coupler was defective when he ordered the brakeman to use it. Exception 'sustained,: verdict set aside. All concurred.