Brossman v. Lehigh Valley Railroad

Mr. Justice Trunkey delivered the opinion of the Court, William Brossman had been in the employ of the defendant as brake man on a freight train for over two months. He made one round trip each day, and his duties required him to be on the top of the box car. There were a number of bridges over the road so low that a man could not stand erect on the car as it passed under, without striking; the bridge where the accident occurred was about four feet above the top of the cars. That Brossman knew of these bridges, including the one that [498] threw him from the car, is as certain as that he had passed under them daily, when on duty, from the date of his employment. At the time of the accident Brossman and Hart were together, both familiar with the situation of the bridge; the night was dark and a heavy rain falling, and neither of them gave the slightest attention to the impending danger. Hart says they were not watching for the bridge; had their minds on their work. No lights or any other signal had been on or near the bridge for more than six months to warn the brakemen when near it. During all the time of Brossman’s service the hazards of his occupation were the same as when he was employed; no change had been made in the bridges or height of the cars. It is obvious that the bridge was dangerous to the lives of the brakemen, as all bridges are, when so near the top of the cars; and it maj' be taken as proved that a number of men were injured and some killed by it before the death of Brossman. It also appears that danger signals had been in use at this bridge, but some time before Brossman was employed they were abandoned; and such signals are used by some other railroad companies. Many points in the argument on behalf of the plaintiff were pressed much as if the deceased had stood in other relation to the defendant than employé. It is hardly necessary to remark that most decisions in cases against railroad companies where passengers were injured, or where persons were injured at street crossings, and the like, have little bearing on the main question presented in this record, namely, did the deceased, after knowledge of the hazardous duties of the place, assume the risk incident to their discharge. Upon this fact there is no conflict of testimony — he knew the danger and risks as well as anybody else, if not at the date of his employment, immediately after he began the performance of its duties. When an employé, after having the opportunity of becoming acquainted with the risks of his situation, accepts them, he cannot complain if subsequently injured by such exposure. By contracting for the performance of hazardous duties, he assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertain: Wharton on Neg., § 214. This is the general rule. In Ballou v. Railway Co., 5 Amer. and Eng. Railroad Cases, 480, the deceased was killed by reason of a defect in the ladder of a freight car, and it was held that his representative could not recover. A well prepared note, reviewing the cases upon the subject, upon the point which touches the case in hand, page 506, states the doctrine as follows: “It seems clear if a person in the employment of [499] a railroad company discovers that the appliances with which he is working are or have become through use unsafe, and continues without any special order of the company, and without making any complaint, to use the said appliances, that he will be held to have either run the risk of being injured, or to have been guilty of contributory negligence; and hence, in case of injury to him occasioned by such delect, the company will not be liable. And this is true even though the defect be such, a one as under ordinary circumstances the company would be bound to repair.” If a servant, after discovering the danger of using some appliance, continues to work when ho must of necessity use it, he assumes the risk, and the master is discharged from liability: Railroad Co. v. Shertle, 2 Amer. and Eng. Railroad Cases, 158, note. Thus has the rule been applied in cases of defects in the cars, or appliances, but the doctrine in its application to a case like the present is settled as well as anything can be by repeated adjudications. And its application is less difficult in proportion as the hazard is more certain to be observed by the employe, and being unconnected with the machinery and cars. Where the service of a brakeman is extra hazardous and dangerous on account of a bridge being of insufficient height, of which the brakeman had knowledge while employed, and he continued in the service without objection, he assumed the dangers incident to the service from the bridge in question, and there can be no recovery on account of his death caused by the bridge. The negligence of the employer is waived by the employé remaining in employment without protest or promise of amendment. This waiver cannot be affected by the rapidity or promptness with which he may be required to act at the time of the accident: Wells v. Railroad Co., 56 Iowa, 520. Where a railroad company negligently plans an obstruction over its roadway, dangerous to the lives of its emploj’és, it fails in its duty to them, and therefore if a person enters the service of the company, in ignorance of such danger and remains ignorant thereof until injured or killed by it, the company is liable for damages. But if the employé had knowledge of the nature and degree of the peril when he entered the service, or continued in the service after such knowledge without protest and promise of amendment, the case is different. The employer has no right to subject his employé to an unnecessary peril without his consent; but it is well settled in the courts of this country and in England, that if a servant chooses to enter into an employment, involving danger of personal injury which the master might have avoided, he takes upon himself the risk of all the hazards incident to the [500] employment, the existence and nature of which were known to him when he entered the service, and which he had no reason to expect would be obviated or removed. If a servant accepts service with a knowledge of the position of structures from which he has occasion to be apprehensive of injury, he cannot require the master to make changes so as to obviate the danger, or hold him liable for damages in case of injury: Clark v. Railroad Co., 28 Minn., 128. By continuing in the master’s service, after being fully apprised of its dangerous character, the servant takes upon himself all risks incident to such service: Umback v. Railway Co., 8 Amer. and Eng. Railroad Cases, 98. Decisions in accord with those cited are multitudinous, and the able counsel for plaintiff has adduced none to the contrary. They are too well grounded to be overruled, save by legislative power. When the hazards incident to the duties of the employ! are open, before his eyes, meet him every day of his service, and would knock him down if he did not stoop to avoid them, and he continues in the service without promise of amendment, clearly, he accepts the risks of the situation. It is no matter whether danger signals are on other roads, for he was not deceived as to the degree of danger he incurred. Nor is it necessary to consider his rights, or the liability of his employer for damages in case of injury, under a different state of facts. Judgment affirmed.