Potter v. Detroit, Grand Haven & Milwaukee Railway Co.

Montgomery, J. The plaintiff was an employe of the defendant as a freight brakeman. On the l?th of September, 1892, in the evening, at about 8:30, the train arrived at Milwaukee Junction, where two, cars, standing on the “ East Y,” so called, were to be attached to the train, and pulled over a switch that led off the main track to the east Y. Plaintiff turned the switch, gave the signal for the train to back down on the east Y, where the cars to be taken on were, preceded the train down the Y, and made the coupling. The conductor gave the signal to go-ahead. Plaintiff testified that he started to climb up the side ladder of the car, and had gotten part way up, when he was struck by a telegraph pole, and injured somewhat seriously. The testimony shows that plaintiff had been in the employ of defendant as a spare brakeman for 9 days during March and 19 days during April of the same year, and again from May 3d to some time in June, when he went to Pontiac; that he returned to work for the company in August, and worked on a passenger train during -that month, and until September 14th; that on the 15th of September he left Detroit for Holly on a freight train, returned to Detroit on the morning of the 16th, and was at Milwaukee Junction at about 4-:50 a. m. While doing work as a freight brakeman, the plaintiff passed Milwau — 181 — kee Junction frequently, and took on cars there. He testified that he did not do any coupling at the east Y, but the testimony is quite convincing that he did. He testified that he had no knowledge that this pole was near enough to the track to be dangerous. From a judgment for plaintiff, defendant appealed. It is contended that there was a fatal variance between the proof and the declaration. The declaration was as follows: “And for that whereas, on, towit, the l?th day of September, 1892, said plaintiff was, and for a long time previous thereto had been, employed by said defendant as brakeman on its cars in the yard at Milwaukee Junction, a station along the line of said railroad; and, in the performance of the duties imposed on said plaintiff by said defendant in the employment aforesaid, it became and was necessary for said plaintiff to ride back and forth in said employment on the side of the railway cars, clinging to the steps or ladders placed on the side of said cars by said company for that purpose, and which is the usual manner of performing and going to and from the work in and about which plaintiff was employed. * * * But, notwithstanding the duty aforesaid of the said defendant, it wholly neglected and refused to perform such duty towards said plaintiff, in that it placed and permitted to remain a post or telegraph pole so near one of the tracks of said railway in said yard that, while said plaintiff was in the performance of his duty, and while riding along on the side of one of the defendant’s cars, as aforesaid, he would be struck by said post or pole, and there was not sufficient room between said car and said post or pole to allow the body of said plaintiff, while engaged in his duties as aforesaid, to pass without injuring him. * * * And while in the performance of his duty, as aforesaid, and while riding on the side of a moving car, as aforesaid, in the performance of such duty, he was struck by said post or telegraph pole, negligently left standing by said defendant so near its track in said yard, and was knocked from the side of said car,” etc. There was testimony that it was necessary to climb up the ladders of the cars while in motion, but the evidence did not show that the brakemen were expected to ride on — 182 — the sides of the cars except in-this way. The testimony was not objected to, but at the close of the case the defendant’s counsel asked an instruction that there was a fatal variance. We think the proofs' tended to support the averments. It is true that the evidence failed to show that the plaintiff could have properly ridden continuously on the side of the car, but the proof indicated that he might lawfully ride there while ascending to the top of the car. We do not think there was such a variance as to work a surprise to defendant. It is next contended that the plaintiff assumed the risk of contact with the telegraph pole, and that a verdict should have been directed on that ground. In .this connection it is insisted that the evidence shows conclusively that the plaintiff either knew, or should have known, of the proximity of this' pole to the track, and testimony which is very convincing, if not conclusive, is cited to show that plaintiff had on previous occasions assisted in taking cars off the east Y; and if this fact were enough to establish that plaintiff either knew, or from the nature of his employment ought to have known, that this pole was located so near the track as to be dangerous, we should be inclined to assent to the contention of counsel. But we are not prepared to say that if the plaintiff had the opportunity which would be afforded by walking past this pole, or riding back and forth on the tops of cars, he was bound to make so close an inspection as would enable him to discover that the pole in question, instead of being in a safe location, was a few inches too near the track. It is, however, contended that, as matter of law, the plaintiff must be held to have assumed the risk of such structures near the track as the pole in question. It is said that the principle which plaintiff’s counsel invoke, that it is the duty of the master to provide a safe place for his employésto work, is not applicable; that— “That principle properly has reference solely to the adequacy of a structure or device that the employer has provided for use of the employe, and in or upon which the — 183 — employé has to do his work, or to the hazards which the employé may he subjected to through the employer’s negligence in conducting operations on or about the place while the employé is at work.” If we correctly understand this contention, we think it makes for a rule much too narrow. A place may be rendered unsafe as well by being so placed with reference to adjacent objects as by inherent defects in the place or device itself. We have no hesitancy in saying that, if we leave aside the question of assumed risk for the moment, a railroad company which, without necessity, locates telegraph poles so near to the track over which its employés are required to operate its trains as to render it unsafe for such employés to operate the trains in the ordinary way, without meeting with injury from such structures, has failed in its duty to provide a safe place. Walsh v. Navigation Co., 10 Or. 250; Illinois Central R. Co. v. Welch, 52 Ill. 183 (4 Am. Rep. 593); Johnson v. Railway Co., 43 Minn. 53; Houston, etc., R. Co. v. Oram, 49 Tex. 341; Chicago, etc., R. Co. v. Russell, 91 Ill. 298 (33 Am. Rep. 54); Whipple v. Railroad Co., 19 R. I. 587 (61 Am. St. Rep. 796); Scanlon v. Railroad Co., 147 Mass. 484 (9 Am. St. Rep. 732); Sweet v. Railroad Co., 87 Mich. 559; Allen v. Railway Co., 57 Iowa, 623 (5 Am. & Eng. R. Oas. 620). The employé is, however, held to assume the risk of injury from such structures as he knows of, or ought, in the exercise of common prudence, to be acquainted with, and the difficulty in any given case is chiefly in determining whether the obstruction belongs to this category. In applying the rule of assumed risks, the courts have not always been consistent, and different courts have reached different results on the same state of facts. A brief review of some of the cases may be of interest. In Massachusetts, in Lovejoy v. Railroad Co., 125 Mass. 79 (28 Am. Rep. 206 ), it appeared that a signal post was placed 3 feet and 8 inches from the track, and plaintiff, an engineer, while leaning out of his cab, looking for a — 184 — signal, came in contact with it, and was injured. It appeared that the abutments of 46 bridges, numerous buildings, entrances to stations, and other structures on the line of the defendant’s road, were the same distance from the track. These facts were known to the plaintiff, although he 'had not, previous to the injury, noticed this particular post. It was held that if there was any danger to the plaintiff, while he was in the performance of his duty, from the structures so placed, it was a risk he assumed. The court said, “He knew the manner in which the road was constructed, the proximity to the track of these structures, and the methods employed in the management of the trains.” In Fisk v. Railroad Co., 158 Mass. 238, it appeared that plaintiff, a freight brakeman, was injured by contact with an overhanging awning at a station. All the principal stations on the road had such awnings, and plaintiff knew there was an awning at the station where he received his injuries. It was held that he assumed the risk. The case of Scanlon v. Railroad Co., 147 Mass. 484 (9 Am. St. Rep. 732), illustrates the distinction made by the Massachusetts court. Plaintiff, a brakeman, came in contact with a signal post 3|- feet from the track. He had no previous knowledge of the proximity of this post or other objects to the track. Defendant showed that an examination of the permanent structures along the line of the road disclosed that several structures were as near the track as the post in question; but the court said: “The danger, the risk of injury, which it is claimed 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 áre 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, — 185 — but tbe risk is not assumed by the employe unless he knows the danger, or unless it is so obviously incident that he will be presumed to know it.” In Illinois Central R. Co. v. Welch, 52 Ill. 183 (4 Am. Rep. 593), the plaintiff, a brakeman, was injured by an overhanging awning. It was said by the court: “There are many freight depots and station houses upon the line of the Central Railway, and it would be preposterous in us to say, or to ask a jury to say,- that a brake- • man engaging in the service of the company must be held to know whether or not there may be one among them whose roof or awning so projects over the line of road that a brakeman on a freight train, in the performance of his duties, would be liable to be swept from the train by collision with it.” See, also, case of Chicago, etc., R. Co. v. Russell, 91 Ill. 298 (33 Am. Rep. 54),— & case of an injury by a telegraph pole. In North Dakota, in the case of Boss v. Railroad Co., 2 N. Dak. 128 (33 Am. St. Rep. 756), it appeared that a switch target was located so near to the track that an employé was struck by it. The company was held liable. As to plaintiff’s duty the court said: “Nor can we say that plaintiff, in the ordinary exercise of his faculties, was bound to know the condition of that switch-stand. It is true that he had passed it upon this train nearly every day for two weeks, but he had no duty to perform in connection with the running of the train; nothing in any manner that would be likely to call his attention to the condition of this switch-stand.” In Wisconsin the test of liability seems to be whether the obstruction or structure dangerously near to the track was necessarily placed there. In Kelleher v. Railroad Co., 80 Wis. 584, an employé was injured by coming in contact with a coal-shed 22 inches from the side of the car. The plaintiff was held entitled to recover. The court say: “ It is objected that the true test is not whether it was ‘ unnecessarily ’ dangerous, but whether it was unreasonably dangerous. This contention cannot prevail. — 186 — It is settled in this State that the duty of the company is to see that its tracks are not so obstructed as to render the duties of its employés unnecessarily hazardous,”—citing Dorsey v. Construction Co., 42 Wis. 583, in which case it .was held that, although plaintiff had passed the structure every day for five months, the question of whether he ought reasonably to have known of the danger was for’ the jury. In Scidmore v.. Railway Co., 89 Wis. 188, the court held that the maintenance of a clearance post' was not negligence, and that the plaintiff, knowing that such posts were maintained by the defendant, could not recover for injuries received by coming in contact with one of them. The holding of the latter position is consistent with all the cases, including those cited from Massachusetts; but the holding that the maintenance of the clearance posts so near the track was not negligence can only be reconciled with the earlier Wisconsin cases on the ground that such posts are necessarily placed thus close to the track. In Kansas the duty of the company to refrain from placing structures so near the track as to cause unnecessary peril to the employé is maintained. The court, in St. Louis, etc., R. Co. v. Irwin, 37 Kan. 701 (1 Am. St. Rep. 266), recognizing the rule of assumed risk, say: “The law, however, does not require that an employe shall know of all defects or obstructions that may exist on the road, or in the service in which he is engaged; and it cannot be said that the peril in this case was so obvious and patent that Irwin must have known it. He had a right to assume that the company had done its duty, and placed its track in such a condition that he could perform his duties with reasonable safety.” In Johnston v. Railway Co., 23 Or. 94, deceased was a switchman. He was injured by being struck by a target pole so near the track as to strike him as he passed by on the side of the car. A recovery by the executor was sustained. As to assumed risk, the court said: “It is not expected of a switchman that he should care — 187 — fully measure the distance between a switch target and. the rail. This is the duty of the master, and the servant has the right to assume that the target or other obstruction is at a reasonably safe distance, in the absence of anything to excite special apprehension of danger.” The same rule obtains in Texas. In Bonner v. La None, 80 Tex. 117, it was held that a railway company is responsible to one of its employés for negligently constructing a target so close to the track as to cause injury to the employé while in the line of his duty, if the employé could not reasonably have anticipated the danger. And, on the other hand, it is held that, if the employé knows of the conditions, he takes the risk. Missouri, etc., R. Co. v. Somers, 71 Tex. 700. In the latter case the court state the rule as follows: “The employés of the company are not called upon to inspect the machinery, roadbed, or cattle-guards. It is the duty of the company to have all these inspected, and tb know that they are reasonably safe, and the employé has the right to rely upon its discharge of that .duty. But when he is aware that a large number of cattle-guards are dangerous, and in this regard they are substantially alike, so far as his knowledge extends, he must know better than to rely upon the safetj- of any of them.” In Indiana the rule is the same. In Louisville, etc., R. Co. v. Wright, 115 Ind. 378 (33 Am. & Eng. R. Cas. 370, 7 Am. St. Rep. 432), the case of Illinois Central R. Co. v. Welch, 52 Ill. 183 (4 Am. Rep. 593), is cited with approval, and the court add: “ A person contracting to work upon a railway as a brakeman assumes the risks ordinarily and properly, incident to such service, but he does not, by such hiring, assume the risk of unusual dangers of which he has no knowledge, or of which he is not bound to take notice.” The same rule is maintained in Rhode Island. Whipple v. Railroad Co., 19 R. I. 587 (61 Am. St. Rep. 796), is substantially on all fours with the case under consideration. Speaking of the duty of the plaintiff to know of the proximity of the telegraph pole to the track as affecting the question of assumption of risk, the court say: — 188 — “We do not think that the fact was sufficiently obvious. The difference between the distance which the pole stood from the track and the distance which would have been safe was only seven or eight inches. The plaintiff had never, before the accident, so far as appears, passed or attempted to pass the pole on the side ladder of a car. The only opportunities which he had had to judge of its proximity to the track were from passing it on foot and on the tops of moving cars in the course of his employment, neither of which situations would bé favorable for estimating, the distance of the pole from the side of a car moving along the track with sufficient accuracy to know whether or not the pole was safe, the margin of safety or danger being so slight a space.” In Johnson v. Railway Co., 43 Minn. 53, which was a case of a signal post, the court held that the employé was not to be held to have assumed the risk, in the absence of notice, unless it was apparent. See, also, Atlanta, etc., R. Co. v. Woodruff, 66 Ga. 707. Other cases might be cited, but it is believed that these cases from Illinois, Oregon, Minnesota, Texas, Massachusetts, Iowa, Wisconsin, Kansas, Indiana, Georgia, and Rhode Island sufficiently indicate the trend of authority. In a general way it may be said that the cases which deny liability rest upon the ground that the obstruction in the particular case was not a negligent obstruction, as in Randall v. Railroad Co., 109 U. S. 478, and Illick v. Railroad Co., 67 Mich. 632; or that the plaintiff, having previous knowledge of the situation, assumed the risk, as in Pennington v. Railway Co., 90 Mich. 505, where there was actual knowledge; or as in Manning v. Railway Co., 105 Mich. 260, and in Missouri, etc., R. Co. v. Somers, 71 Tex. 700, where he knew of similar obstructions, and is not held excused from the duty of discovering the particular one. The correct rule is tersely stated in 3 Elliott, R. R. § 1269: “ It seems to us that, where the employé has knowledge, or is chargeable with knowledge, of the existence and situation of such structures, he assumes the risk of dangers from them.” — 189 — To say just when the servant not having actual knowledge of the obstruction causing the injury is chargeable with such notice is not always an easy task. As we have seen, if he knows that other like obstructions exist along the way, this is notice; but, in the absence of such circumstances, we think that wrong is not to be imputed to the employe for not assuming that his employer will unnecessarily and negligently expose him to danger. We think this case was one for the jury. It is claimed that error was committed in the admission of testimony of medical experts. Dr. Hume, Dr. Phippen, and Dr. Perkins examined the- plaintiff shortly before the trial. The testimony which they gave as to the examination, and what it disclosed, was not objected to. A hypothetical question was then put, and it is contended that, by the terms of the question, the witness was at liberty to consider the subjective symptoms in giving his answer. The question did not call upon him to do so, and no such specific objection was made on the trial. We think there was no error in this ruling. . Some time after plaintiff received his injuries, and on October 31, 1892, he signed a release reciting that he had received certain injuries, as follows: “At Milwaukee Junction, while riding on a ladder of car, was knocked off by a post standing a little west of the road crossing, cutting the side of my head, and bruising my shoulder; ” and, after reciting that the company denied liability, for the purpose of determining and ending the question of liability and to avoid litigation, in consideration of reemployment by the company, the release proceeds: “I do hereby waive and relinquish all claims that I may have against the said company for damages for the aforesaid injuries, and do hereby release the said company of and from all claims for damages as aforesaid.” The recited consideration for this release is “the re-employment by the said company for such time only as may be satisfactory to the said company.” The testimony shows that, at the time when the release was signed, the plaintiff was — 190 — already again in the defendant’s employ. No change as to the terms of employment was made, nor was the defendant company bound to retain him in its employ for any length of time whatever. There was no consideration for the release. The case is, in this respect, very similar to Purdy v. Railroad Co., 125 N. Y. 209 (21 Am. St. Rep. 736). It is unnecessary to review the, instructions relating to this feature of the case. A motion for a new trial was made, and error is assigned on the refusal to grant this motion. It is argued that the great weight of the testimony shows that the plaintiff rode past the post in question a great number of times. If this fact were controlling, we should be strongly inclined to accept the view of defendant’s counsel that a new trial should be awarded. We do not, however, regard the fact as conclusive of defendant’s claim. The inference to be drawn from the fact was for the jury. We discover no material error. The judgment is affirmed. Moore, J., concurred with Montgomery, J. Hooker, J., concurred in the result.