Southern Railway Co. v. Taylor

Atkinson, J. (After stating the foregoing facts.) No complaint is made of any inherent weakness or other defect in the plank or the sills upon which it rested, or that the sills did not project sufficiently for the plank to have had a secure position upon them; but the whole complaint is merely that the plank, though loose, projected so far beyond the ends of the sills as to render it insecure, and when plaintiff rested his feet upon the outer edge it tilted, precipitating him and causing the injury. The plaintiff knew that the plank was not nailed, or otherwise fastened to the sills; in other words, that it was a loose plank. He saw that the ends of the sills upon which the plank rested did not extend beyond the plank; as he testified that he could not see the ends of the sills beyond the plank as he got down on it. Yet he undertook to stand on it without any effort to ascertain whether it would be safe for him to do so, notwithstanding he knew that the plank was loose and that the ends of the sills upon which it rested could not be seen beyond it. If Avery, the representative of the railway company, was with Taylor at the time the latter got down on the plank, the peril of doing so in obedience to Avery’s order was no more apparent to the latter than to Taylor; and if the danger was hidden to both of them and could not have been discovered by the exercise of ordinary care, then Taylor could not recover, for he assumed the risk incident to getting on the plank. If the danger was obvious, then it was equally so to both Taylor and Avery. The plank did not constitute a part of the work planned by Avery, nor a part of the permanent structure of the trestle, but was merely a loose [708] plank left where a portion of the trestle had been completed. Considering the plaintiff’s age, his long experience in bridge building, and his knowledge of all the circumstances of the situation at the time he got upon the plank, and applying the principles announced in the first headnote to all the facts of the case, the plaintiff was not entitled to recover. Judgment reversed. All the Justices concur, except mil, J., not presiding.