Kaylor v. Cornwall Railroad

Opinion by Mr. Justice Stewart, In disposing of the assignments of error which relate to the court’s refusal to give binding instructions in favor of the defendant, it is only necessary to advert to a feature of the case, overlooked in the argument, yet quite sufficient in itself to have compelled a submission of the case to the jury. Since the several propositions advanced upon the argument in support of these assignments were framed without reference to this important and qualifying feature of the case, they may be regarded as abstract, requiring no discussion here. Whether a presumption of negligence arises from the mere fact, disassociated from all others in the case, that the telegraph pole with which the plaintiff came in contact was so erected and maintained that between it and the top of the car upon which the plaintiff was engaged, there was a space of only fifteen inches; or whether, [139] having shown so much, the burden still rested on the plaintiff to show actual negligence, were not the questions the court had to consider in ruling on the points submitted. As much maybe said of the other question so pressed upon our attention, viz: whether the danger in connection with this pole, since it was apparent and obvious, was not a risk incident to plaintiff’s employment and voluntarily assumed. Further facts in the plaintiff’s case left these considerations without any determining significance. The plaintiff, a brakeman in defendant’s employ, was, immediately before the accident occurred, in his proper place on top of a freight car. To discharge a duty which required promptness and alacrity on his part, viz : to turn the switch and signal approaching trains, — a duty so important in its relation' to the safety of the public and his coemployees, that no peril to himself, arising out of the usual and ordinary conditions, would have excused his disregard of it — he attempted to alight from the moving train, by means of an iron ladder attached for this purpose to the side of the car. While so attempting he was carried violently against a telegraph pole at the side, with the result that he was seriously injured. A like ladder was on the other side of the car where no telegraph poles were to be encountered. Except for these telegraph poles, both sides, under ordinary and usual conditions, were alike with respect to convenience and safety in alighting. There was no rule or regulation requiring the one to be used rather than the other, the employee being free to choose either, determining for himself according to conditions existing at the time. On the day of the accident, when the plaintiff reached the point where he attempted to alight, he encountered unusual and extraordinary conditions, which, according to his testimony, put him to the choice between two methods of alighting, both of which were manifestly dangerous. The defendant company at this point had been relaying its tracks, and had deposited the old rails which had been replaced, in _ the open space at the side of the track on which there were no poles. Plaintiff knew this fact, for on a previous occasion, when these rails were under his observation, he attempted to alight on that side, had fallen on them, and been injured by them. When the accident here complained of' [140] happened, the rails were covered with snow, and the hazard of alighting on that side was thereby very considerably increased. Plaintiff distinctly testified that it was this danger, resulting from the rails being concealed then by the snow, that determined him to attempt the other side, since the danger there being open and exposed, was susceptible of some sort of measurement. In view of this testimony it became a question, not whether the telegraph line in its construction at that point, corresponded to the standard observed and adopted by railroads generally along curves such as was here, but whether, in view of the peculiarly hazardous duties required of the plaintiff at this point, and the use to which defendant had appropriated the other side of the track, making it also a dangerous place to alight upon from a moving train, it was negligence in the defendant to maintain a telegraph pole at this particular point, which at the height of the car was only fifteen inches removed therefrom. If by so doing the plaintiff was subjected to dangers which in good faith the defendant ought to have provided against, it was negligence; but this question could only be determined upon a consideration of all the facts of the case, and these were for the jury to find. Careful instructions as to the application of the law to the facts were required for a proper determination; and these were given. There was no error in refusing the binding instructions prayed for. The record gives no support to the remaining assignment of error. Whether the evidence sought to be elicited from the witness, Dr. Gloninger, would or would not have been competent, need not be considered. The record shows that the witness was interrupted in his answer to the question by a timely objection which prevented him from repeating anything that had been told him by the plaintiff. The assignments of error are overruled and the judgment is affirmed.