New York, Susquehanna & Western Railroad v. Marion

The opinion of the court was delivered by Magie, J. Counsel for the railroad company has confined his argument to the assignment of errors, which is directed at the refusal of the trial judge to nonsuit the plaintiff below. His contention is that the facts of this case are identical with those disclosed in Baylor v. Delaware, Lackawanna and Western Railroad Co., 11 Vroom 23, in which this court held there should have been a nonsuit, and that, in refusing the motion, the trial judge in this case disregarded the legal rule there laid down. This contention cannot prevail. In the Baylor case a brakeman was injured by coming in ■contact with a solid, overhanging bridge, by which a road was carried over the railroad on which he was passing in the employ of the railroad company. The legal rule laid down in that case was that, a railroad company owed to its brakemen no duty to build such bridges at an elevation sufficient to permit a man standing on a car [96] to pass in safety. Since it may be, in some cases, impracticable for the company so to construct such bridges, and in other cases it may be unreasonable to require such construction, the general proposition laid down is not objectionable. ¡ It was unnecessary to qualify the proposition in that case, for, upon the evidence, it appeared that Baylor entered upon his employment with a knowledge of the danger to which he would be exposed, and that he had, on previous occasions,, passed the bridge by daylight, when the danger, which was-clearly an obvious one, must have appeared to him. In the case before us, the dangerous element in the construction of the bridge was a slender bar crossing the track at a height which permitted brakemen standing on some cars, to pass in safety, while on other cars they would come in contact with the bar. It cannot be said that such a danger was necessarily an obvious one. Upon the evidence, it might well be deemed difficult, if not impossible, for a brakeman to-calculate the distance of the bar from the roof of a car and to determine whether or not it was a danger to his safety. The duty of a railroad company in the construction of bridges falls within the line of duty of a master to a servant, requiring the master to take reasonable care to have and. maintain the places in which, and the appliances with which,, the servant is to perform his service, free from those dangers,, the risk of which the servant has not assumed by his acceptance of employment. If a bridge constructed with the required care presents a danger obvious to the senses of the-employed, the danger is one incident to the employment, and for injuries received therefrom the company would not be-liable. But if, notwithstanding the exercise of the required care, the bridge, as constructed, presents a concealed or non-obvious danger, then a duty devolves on the company to give-its brakemen sufficient notice thereof. For injuries received from such a construction, the company would be liable unless such notice had been given to the injured or he had otherwise acquired knowledge of the danger. Upon the evidence in this case, questions arose as to whether [97] such notice had been given to Marion and whether he had otherwise acquired knowledge of the danger to which he was exposed by this bridge. These were clearly questions for the jury, and the refusal to nonsuit was proper and in no respect antagonistic to the law announced in the Baylor case. There are other assignments of error contained in the printed book, but they will not bé dealt with, because counsel for the plaintiff in error has not argued them, and, upon examination of the files of the court, we find no bills of exception. The judgment should be affirmed. Dixon, J., concurs.