Scanlon v. Boston & Albany Railroad

W. Allen, J. The danger, the risk of injury, which it is claimed that the plaintiff assumed, was not the particular danger from the post which caused the injury, but the general danger from the structures and erections near the track. The plaintiff had no actual knowledge of the danger, and he cannot be held to have assumed the risk of it unless the character of the danger and the circumstances are such as to show that he ought to have known and appreciated it. The fact that it was incident to the employment is not sufficient; peril from dangerous machinery or appliances or structures is incident to employment upon them, but the risk is not assumed by the employee unless he knows the danger, or unless it is so obviously incident that he will be presumed to know it. The danger in this case was not from objects casually or accidentally near the side of the car, but from permanent erections maintained near the track by the defendant. The circumstances are not such that the plaintiff will be presumed to, or ought to, have known of the danger. He did not know that there were erections so near the track as to endanger him. Such erections were, in fact, few and exceptional. Within fifteen miles of Boston there were but seven, three signal posts, one telegraph pole, and three bridges and abutments; it does not appear whether there were any others upon the road. It was the plaintiffs first trip as brakeman; he was unfamiliar with the road and with the running of trains, and was not informed that there was any such danger, or in any way cautioned in regard to it; and he had no reason to know that there were permanent erections so near the tracks as to make it dangerous for him to be upon the place on the car which was provided by the defendant. The case of Lovejoy v. Boston & Lowell Railroad, 125 Mass. 79, was in some respects very similar to this. An engineer, leaning out from the cab of his engine, was struck by a signal post. The post was one of a series equally distant from the track; the abutments of forty-six bridges, and numerous buildings, station entrances, and other structures on the line of the railroad, were as near to the track, and these facts were known to the plaintiff. The court say: “ If there was any danger to the plaintiff, while in the performance of his duty, from the structures thus placed, it was a risk he had assumed. He knew the manner in which the road was constructed, the proximity [488] to the track of these structures, and the methods employed in the management of the trains. The defendant had the right to construct its road and conduct its business in this manner, and, as was said in Ladd v. New Bedford Railroad, 119 Mass. 412, is not liable to one of its servants, who is capable of contracting for himself, and knows the danger attending the business in the manner in which it is conducted, for an injury resulting therefrom.” In Yeuton v. Boston & Lowell Railroad, 135 Mass. 418, the plaintiff was employed upon a switching engine, which was used to move cars about the defendant’s yard, and part of the plaintiff’s business was to move damaged cars, and he knew the danger that attended. handling them, and sometimes examined cars to see if they were damaged. The court held, that the defendant was not bound to give notice to the plaintiff that a particular car which was in the yard to be moved was defective, but that the plaintiff took the risk of ascertaining that fact. In the case at bar, it was the general danger from permanent structures of which the defendant failed to give notice. Leary v. Boston & Albany Railroad, 139 Mass. 580, was the case of a fireman upon a switching engine, who was standing upon the footboard of the engine, and was thrown off by the jolting of the engine in crossing frogs and switches. It was held, that the plaintiff had full knowledge of the danger, and assumed the risk, and that the defendant was not in fault. In Ferren v. Old Colony Railroad, 143 Mass. 197, the plaintiff was injured by being pressed between a car, which he was pushing, and a building. He knew the position of the building and of the car, but did not appreciate the peril. The court say: “ The material point of distinction between this case and many others is, that here it is open to the jury to find that the plaintiff did not know or appreciate the risk of the work upon which he was engaged, and that in the exercise of due care he was not, as matter of law, bound to know or appreciate the same.” In the case at bar, we think that the danger was not so obviously incident to the employment that the plaintiff can be held to have assumed the risk of injury from it, and that it cannot be said, as matter of law, that he was bound to know and appreciate the danger. New trial granted.