N. Y., L. E. & W. R. v. Lyons

Opinion, Mr. Justice Paxson : The plaintiff brought this action in the court below to recover from the defendant company damages for injuries received while in their employ as a brakeman. The facts, as we gather them from his own testimony, are substantially as fol [334] lows: On the 17th of October, 1888, he was on extra coal train No. 4. About three o’clock in the morning the train stopped for water at Millville, and the plaintiff was sent back to flag another extra train and order it to run slow. This train was following the one of plaintiff and was drawn by engine No. 337. The plaintiff was instructed by his conductor to go back and flag the following train. He says: “ It was a cold morning and we were running slow, and we had stopped there to take water, and he was following us and I was put off to flag him. I was put off to go back and let them know what ■was the matter with our train, and have them look out for us there.” The plaintiff fully performed this duty; he flagged the train, told them what was the matter, and then started for his own train. Up to this time no accident had happened. He ran after his own train for a short distance and then turned back. This fully appears from his cross-examination: “Q. You didn’t gain on it (the train) as you walked up? A. I ran up around to see how fast they were going. Q. When you found you couldn’t reach them, you turned? A. Yes, sir. Q. Did you walk any distance? A. I walked back a ways until the train catched me.” When the train came up it was going from four to six miles an hour. He says - he signaled it as it approached, but the conductor did not see him and made no answering signal. He then attempted to get on the engine. The night was dark, and he had in his right hand two lanterns. He took hold of the handle of the tender with his left hand and attempted to get his foot on the step. The step was a high one; higher than usual; his foot slipped, got on the rail and was crushed. The plaintiff bases his charge of negligence against the company wholly upon the unusual height of the step. It was not contended, however, that it was dangerous to get on when the engine was stationary; at such times it was only inconvenient. The plaintiff had been on the engine before, knew of its danger, and made no complaint to the proper authorities ; nor did he for such reason decline to remain in the service. The plaintiff further alleged and so testified that at the time he turned back to the train and was injured, his purpose was to flag it the second time. That I may do no injustice I give his precise words: “I flagged them and told them what [335] was the matter, and when they were taking water I saw our train ahead of us, and I started towards our train, and I saw our train was going slow, I came back to flag them again, and tell them, and they were started on then, about four miles an hour, and I didn’t get any answer from the engineer that he saw me and when the engine came along I got on and I missed the step and slipped under. The step was too high.” It is clear, notwithstanding the above statement, that when the plaintiff attempted to board the engine he was under no duty to either stop or flag the train. He says himself that he had no orders to do so. He had previously flagged it, delivered his instructions, and performed his whole duty. He turned back and attempted to board this train because it was easier than to overtake his own train. He admits that he had the power to stop the train and preferred taking his chances of getting on safely to remaining until it stopped, or following his own train until he could overtake it. We have then, upon the admitted facts, the case of an employee attempting upon a dark night to get on board a moving engine with a very high step, known by him to be so, with his right hand incumbered with two lamps, when under no duty to board- it. In considering the assignments of error, regard must be had to the facts as they existed at the time the points were presented and the rulings made. I will now refer to them briefly: 1st. This assignment is sustained. It was error to permit the plaintiff to testify as to what instructions he had received from his conductor in reference to flagging the train, for the reason that he was not engaged in any such duty when injured. 2d, 3d, 4th, and 5th. In view of the admitted facts the plaintiff’s third, fifth, sixth, and seventh points should have been refused. They need no discussion. 6th. The defendant’s fourth point should have been affirmed without qualification. The point was as follows: “ That the plaintiff having admitted that he knew the step in controversy was so high as to render it difficult to get on to the train, and having continued to use it in such a condition, without giving notice to his employer of its unsafe and improper condition, and asking him to repair it, he voluntarily [336] accepted the risk, and in case of injury from such cause cannot recover damages therefor.” The learned judge referred this to the jury. It is at least possible that his attention was not called to our own cases upon this subject. Our attention has certainly not been called to them, although there are several which rule the question pointedly. The only authorities cited are those of other states. It is sufficient for present purposes to refer to Mansfield Coal Co. v. McEnery, 91 Pa. 185, where it was said: “ It has been repeatedly held, in fact there is no conflict of authority upon this question, that where an employee has knowledge of machinery being defective and dangerous, and in the course of his employment continues to use it, without notifying his employer of such defect and asking him to repair, he voluntarily accepts the risks and cannot in case of injury from such cause recover damages.” The above rule is not only settled law but is founded on justice and good sense. In a large majority of cases employees are better informed than their employers as to the safety of machinery in use by them, as they have far better means of information. Where a person employing a large number of men engaged in a particular work, has provided machinery, tools, etc., suitable for their occupation, and the same become unfit for use or dangerous from wear or other cause, and they continue to use them without notice to the employer of such defects, it would be a hard rule to hold him responsible. I am not now speaking of hidden defects or dangers which the employee cannot see and know, but of such open and palpable defects as existed in the case of the bridge in the Mansfield Coal Co. case, and of the step in the case in hand. Under such circumstances, to refer such a point to the jury is to fritter the rule away and allow it to be overridden in every ease. A just administration of the law will not allow this to be done. The seventh assignment alleges that the court erred in not affirming the defendant’s fifth point. The said point was as follows: “ The plaintiff having testified that he knew the condition of the step, and the difficulty of getting on to it, and having attempted to get on the train by means of that unsafe and inconvenient step, in the dark, while the train was under [337] way, when he admits he had the power and right to stop it, is guilty of contributory negligence, and cannot recover, and therefore the verdict must be for the defendant.” All the facts of which this point is predicated appear in the testimony of the plaintiff himself; to which might be added the fact already referred to, that his right hand was incumbered with two lamps. Where the facts are admitted it is competent for the court to declare the effect of them. This has heen held so often that it would be an affectation, not of learning, but of industry, to cite them. The point should have been affirmed. We are compelled to say so or overrule Mansfield Coal Co. v. McEnery and numerous other cases. This we are not prepared to do until convinced that they were erroneously decided. This view of the case renders its further discussion unnecessary. Judgment reversed..