Durand v. New York & Long Branch Railroad

The opinion of the court was delivered by Vredenburgi-i, J. In the opinion of a majority of the court the defendant’s fifth request of the learned trial judge to charge the jury was properly refused. This leads to an affirmance of the judgment. As to the other features of the — 657 — case, the dissenting opinion of Judge Adams (previously prepared, but intended to be filed coincidently herewith) is-acceptable to and adopted by the court. That opinion so-' lucidly and compactly states the material facts, the legall situation of the case, and the proper construction to be placed' upon the various bills of exception brought up by the writ-other than the one where, as above stated, the opinion of the majority of this court diverges) that any restatement of such matters here would, I think, be but useless repetition. The particular subject seeming to call for the expression of a different conclusion from that reached by the opinion referred to relates entirely to the construction placed by it upon the sufficiency of the defendant’s bill of exceptions to the refusal of the trial justice to charge the defendant’s fifth request. That request was framed in the following words, viz.: “5. Even if the switch target was insufficient, yet if, from his running so many years past it while in this condition, Mr. Durand knew, or should have known, of its defective condition, he is held in law to have assumed the risk of its insufficiency and the defendant in that case is relieved from.' responsibility for it.” The force given, by the opinion just spoken of, to the meaning of the words of such request, "should have known” is that which would be attributed to the expression “should, by the use of due care, have known:?’' and that the first quoted words, when fairly read or understood in their connection, present a sound proposition. To^ this construction we cannot agree. That the request does-not, at least in its expressed terms, present a sound proposition of law is fully-demonstrated by the same opinion where - it states the legal rule to be “that an employe assumes the- - ordinary risks incident to his employment, and also risks-consequent upon special dangers known to him, or which he ■ could have discovered by the use of due care.” I t-hipk that. in actions of this class it must be conceded to be the law in ■ this state that .either knowledge by an employe of dangers ¡ attending the prosecution of his work, or his failure to* exercise ordinary or reasonable care to obtain knowledge, will prevent recovery in his behalf of damages resulting to him — 658 — -therefrom. Western Union Telegraph Co. v. McMullen, 29 Vroom 155; Comben v. Belleville Stone Co., 30 Id. 226; Atha & Co. v. Costello, 34 Id. 27. A briefer, but sufficient, statement of the general legal :rule, and one more directly pointed toward the facts of the (Case in hand, which I find upheld by excellent authority, is the following, viz.: "That an employe assumes all the risks •of his employment against which he may protect himself by -ordinary observation and care.” The rule is stated recently iin a similar form by Thomas’ work on Negligence (ed. 1895) 837, supported by authorities there given. See also Fricker v. Pennsylvania Bridge Co., 47 Atl. Rep. 354 (Penna. Sup. Ct., October, 1900), viz.: “A servant who enters into an 'employment which is hazardous assumes the usual risks of the service, and those which are apparent to ordinary obser.vation;” or again, on p. 841, “a servant who enters upon • an employment from its nature hazardous assumes the usual •risks and perils of the service, and of -the open, visible .structures known to him, or which he must have known had .he exercised ordinary care and observation,” citing Williams v. Delaware, Lackawanna and Western Railroad Co., 116 N. Y. 628, and other cases; or again, on p. 842, "a servant is .chargeable with actual notice of every fact which he could have known had he exercised ordinary care to keep himself ■informed as to matters concerning which it was his duty to inquire.’’ See also Wood M. & S. 732, and 1 Shearm. & II. Negl. (4th ed.) 375. A large number of cases are, on this last page, cited in support of substantially the same rule, including the case of Johnson v. St. Paul, &c., Railroad Co., 43 Minn. 53, and other cases I shall not take space to cite, except Perigo v. C. R. I. & P. Railroad Co., 52 Iowa 276, holding that it is now the established doctrine that an employe, who knows, or, by the exercise of ordinary diligence, could know, ■of any defects or imperfections in the things about which he is employed is presumed to have assumed all the consequences resulting from such defects. I do not find it in any authority •■stated to be the rule of law that the employe or servant of a (railroad company is bound to a higher than ordinary degree — 659 — of care in informing himself of defects in appliances used on railroads for signals or warnings of danger; his duty therein is to use ordinary care, and whether or not he has used such degree of care is for the jury to settle. In the case of Riley y. Railway Co., 27 W. Va. 145, 150, the instruction to the jury expressly defines this rule as to a brakeman. The late case of Young’s Administrators v. Syracuse, B. & N. Y. Railroad Co. (decided by the Court of Appeals of New York in March, 1901, and officially reported in the advance sheets of volume 166, page 227, of the reports of that court), involved a state of facts so remarkably similar to the present case that it should not be overlooked. The plaintiffs intestate was a railroad engineer, and was killed while running the defendant’s express train through an open switch and thence crashing into freight cars standing upon the side track. It did not appear that the engineer had actual knowledge of the practice used in operating the switch, although he had been in defendant’s service for more than ten years before the accident. There was evidence that, in consequence of the construction of a water-tank and the location of the switch signals, the view of the deceased was so obstructed that he could not see the red light that indicated that the switch was open until he was too close to stop the train (going at from thirty-five to forty miles an hour) in order to avoid passing through the open switch. The switch was so constructed that it displayed automatically a white target by day and a white light by night when closed and safe to the main track, and a red target by day and a red light by night when open to the side track. The suit was dismissed by the trial court and judgment of nonsuit directed on the ground that the deceased assumed the risk of the dangers resulting in his death, since he had the same knowledge of the location of the switch with reference to the water-tank that the defendant had, and if the place was dangerous, due to the fact that the switch signals were concealed, as described, he knew what the situation was and assumed the risk. This dismissal was reversed by the Appellate Division of the Supreme Court and the reversal was affirmed by the Court of — 660 — Appeals. The negligence chiefly urged in the New York case against the defendant as ground for recovery, was that they had not employed a switchman to take charge of the switch, and that, in consequence, the accident had occurred, and the Court of Appeals held that question, together with that of the obscuration of the switch target by another structure and, necessarily, the whole case, should have been submitted to the jury. In the case at bar, the particular negligence complained of was that the defendant maintained a defective switch signal, by reason whereof, and the concealment of that signal bjr another structure, the accident had resulted—in the one case, the absence of a switch-man to guard and to give proper warning; in the other, the absence of a blade of a target to give proper warning. Two more closely analogous occurrences involving the question of the degree of care to discover open switches required of railroad engineers could hardly have happened, and it is significant to observe that so distinguished a court of last resort as the Court of Appeals of New York has held, in a case nearly identical in its facts with the case at bar, that the question of the assumption of such risks by the engineer was, under proper instructions from the court, one for the jury to determine. In either and in every statement of the rule found in the text-books and decisions of courts of authority the idea of ordinary care, expressed either in those or correlative or equivalent words, has invariably formed a part of the definition of the legal duty of such employe in observing such defective conditions. The request in question entirely fails to embrace the idea both of care generally and of the degree of care demanded of the engineer in obtaining knowledge of the defect of the switch signal previous to the accident. Stripped of this concept, the request propounded is too broad, has no legal boundaries, and becomes a waif without lawful parentage. While it may be conceded that the word “should” implies the performance of some obligation or duty owing by the deceased to his employer, yet the degree of care with which that obligation or duty is by law required to be performed is not a necessary implication therefrom. — 661 — The law exacted from the deceased only ordinary observation or care in obtaining previous knowledge of the defects of this signal target, and it seems clear that the trial court would have erred if it had charged the jury in the language of the request, because from that language the jury would have had as much right to infer that the deceased was bouhd, as a matter of legal obligation, to exercise a higher than ordinary degree of care in ascertaining the prior defective .condition of the target, as to infer that he was but to use only d.ue or ordinary care therein. The. trial justice, therefore, properly refused to charge as requested, and since the whole case was placed by him properly and without legal error within the province of the jury, their verdict should stand and the judgment thereon be affirmed.