Leary v. Boston & Albany Railroad

Devens, J. Where an employer knows the danger to which his servant will be exposed in the performance of any labor to which he assigns him, and does not give him sufficient and reasonable notice thereof, its dangers not being obvious, and the servant, without negligence on his own part, through inexperience, or through reliance on the directions given, fails to perceive or understand the risk, and is injured, the employer is responsible. The dangers of a particular position or mode of doing work áre often apparent to a person of capacity or knowledge of the subject, while others, from youth, inexperience, or want of capacity, may fail to appreciate them; and a servant, even with his own consent, is not to be exposed to such dangers, unless with instructions and cautions sufficient to enable him to comprehend them, and to do his work safely with proper care on his own part. But the servant assumes the dangers of the employment to which he voluntarily and intelligently consents, and, while ordinarily he is to be subjected only to the hazards necessarily incident to his employment, if he knows that proper precautions have been neglected, and still knowingly consents to incur the risk to which he will be exposed thereby, his assent dispenses with the duty of the master to take such precautions. Sullivan v. India Manuf. Co. 113 Mass. 396. Coombs v. New Bedford Cordage Co. 102 Mass. 572. There was, in the case at bar, no defect in the roadway, the engine, or other appliances, nor any negligence in the management of them. There was no evidence tending to show that the plaintiff was hurt by reason of any incapacity to understand the character of the employment in which he engaged. He was a man of full age, of ordinary intelligence, and, although he had been brought up on a farm, and had ridden but six times in railroad cars, had been in the employ of the defendant for three years, loading and unloading cars in its yard and shifting freight in its warehouses. Nor was there any peculiar danger which required to be pointed out to an inexperienced person. That of getting off the engine when it was in motion, or of standing in such a position as to be exposed to be thrown off by its jolting, were entirely obvious; and that the engine was liable to jolt in crossing — 585 — the frogs and switches, which were numerous in the freight yard, where alone this engine was used for the purpose of moving freight, making up trains, &c., was known to the plaintiff. That the plaintiff must have had full knowledge of all the danger he incurred while acting as a fireman on the engine, is fully shown by the fact that he had acted as fireman about twenty times, and from one to three hours each time; and, although he testified “ that he never got off the engine at any other time when it was in motion except when it was nearly at a standstill,” he must have been aware of the danger of being thrown off, or which would attend the attempt to leave it. Upon these facts, it would be correct to rule that the plaintiff could not maintain the action, as no fault or negligence was shown on the part of the defendant. The facts present another inquiry which heretofore it has not been necessary to decide in this Commonwealth. It is the contention of the plaintiff, that, if a servant who is hired for work of a simple character, as in the case at bar, is required by his employer to perform other duties more dangerous and complicated, and, although at first constantly objecting thereto, from fear óf losing his employment finally assents, makes the attempt, and, doing his best, is injured by reason of his ignorance and inexperience, he may maintain an action against his employer for negligence in setting him to work in a dangerous place, even if the plaintiff was aware of the danger, and might, under some circumstances, be held to have incurred the risks of the employment. The case of O’ Connor v. Adams, 120 Mass. 427, which the plaintiff deems to some extent to support his contention, is distinguishable, as in that case the evidence tended to show that the defendant’s agents put the plaintiff to work in a place of peculiar danger, of which he had no knowledge or experience, without informing him of the risks, or instructing him how to avoid the danger. In Railroad v. Fort, 17 Wall. 553, a father, who had consented to the employment of his son by the defendant’s foremar as a mere helper, was held entitled to maintain an action when the son was injured by a fall from a great height, to which he had been ordered to ascend, and thus expose himself to danger. — 586 — It was deemed that the father had a right from his contract tó believe that his son would not be thus exposed; and that the son’s inexperience and youth prevented him from giving any assent, in taking such a risk, which could avail the defendant. The .opinion of Mr. Justice Davis recognizes that, if the son had been a person of mature years, even if he had not engaged to do .such work, it might well have been argued that he .should have disobeyed the order, or, if he obeyed, that he took on himself the risk of the employment. In Lalor v. Chicago, Burlington, & Quincy Railroad, 52 Ill. 401, the plaintiff’s intestate, a laborer employed in loading and unloading freight cars, was ordered to couple cars by the defendant’s superintendent, who knew him to be inexperienced, “ unskilled, and unacquainted with the manner of doing such work, when he ordered the deceased to perform it.” The fair inference from the facts was that the plaintiff’s intestate did not appreciate the danger from his ignorance; and the decision is put on the ground “ of misconduct of the company in exposing the deceased to this peril, and, when so exposed, in so carelessly mismanaging the engine as to cause his death.” The case of Jones v. Lake Shore & Michigan Southern Railway, 49 Mich. 573, which is deemed by the court to be fully sustained by Chicago Northwestern Railway v. Bayfield, 37 Mich. 205, more nearly supports the plaintiff’s contention. It was there held that, where the plaintiff was injured while in the employ, of a railroad company in the performance of work to which he was wrongly assigned, and which, by bis original contract, he had never agreed to do, be might recover for the defendant’s negligence in thus imposing work upon him which he had not contracted to perform. The plaintiff was a brakeman on a passenger train under a written contract which bound him to no such duty, and was ordered to couple cars, to which he at first objected, but assented to doing it rather than lose his place. In so doing, he was injured by reason of his inexperience. It would seem to have been held that the case was to be decided by determining whether the plaintiff had been guilty of negligence in obeying the order received. While a person who engages for a particular service agrees to encounter only the — 587 — dangers of that service, he may perhaps, in the first instance, assume that the order given him by his superior is warranted by the legitimate scope of his employment. If, so assuming, he is induced to perform duties which, by his contract, he is not bound to perform, and is thus injured, he should be able to maintain an action for the injury against the employer. But, in the case at bar, the plaintiff knew that the duty of aiding as fireman on the engine was not within his original contract as a laborer. He determined to perform it as a part of his engagement with the defendant, rather than lose his position as a laborer. In so doing, he must be held to have assumed its necessary risks. Such is the doctrine of Woodley v. Metropolitan Railway, 46 L. J. Exch. 521. The plaintiff did this, it is true, rather than lose the position which he had, and which he desired to retain; but by so doing he engrafted this duty on his original contract, of which he made it a part. Morally to coerce a servant to an employment, the risks of which he does not wish to encounter, by threatening otherwise to deprive him of an employment he can readily and safely perform, may sometimes be harsh; but when one has assumed an employment, if an additional and more dangerous duty is added to his original labor, he may accept or refuse it. If he has an executory contract for the original service, he may refuse the additional and more dangerous service; and, if for that reason he is discharged, he may avail himself of his remedy on his contract. If he has no such contract, and knowingly, although unwillingly, accepts the additional and more dangerous employment, he accepts its incidental risks; and, while he may require of the employer to perform his duty, he cannot recover for an injury which occurs only from his own inexperience. The employer is not necessarily unjust, because he wishes in his employ a servant who can from time to time relieve a skilled workman, while his ordinary duties will be those of a mere laborer. It must certainly be his right to engage a servant who, while his ordinary duties will be simple and expose him to no danger, is willing, as a part of his service, from time to time to assume duties which, in order to be safely performed, require a higher degree of skill, and which expose him to a certain degree of danger. — 588 — In the new we have taken, we have not deemed it necessary to consider whether, in preparing to leave the engine to light the pipe of the engineer, the plaintiff could be held to be engaged in the performance of any duty due to or demanded by the defendant. Exceptions overruled.