Laughy v. Bird & Wells Lumber Co.

MaRshatx, J. No contention is made but that tbe jury were warranted in finding tbat appellant’s track and roadbed were defective, causing the derailment of tbe engine tender and consequent necessity, under tbe circumstances, for respondent to jump from tbe moving car, and no substantial controversy as to tbe law governing tbe case. Tbat respondent bad a right to assume tbe situation was reasonably safe for tbe performance of tbe operation in which be was engaged when injured, unless be knew to tbe contrary or would have known thereof bad be exercised ordinary care to observe tbe imperfections, and tbat such care required him to notice' and comprehend those things affecting bis personal safety which were so open and obvious as to naturally attract the attention of a person so circumstanced in case of bis paying ordinary heed to bis surroundings, and if under tbat rule he knew or ought to have known of tbe defects be must be regarded, since be voluntarily and without protest pursued bis employment, to have assumed tbe risk of tbe imperfections, is insisted upon on tbe one side and conceded, as tbe fact is, upon tbe other. Tbe law to tbat effect is very familiar. We are called upon to apply it to a great variety of situations, no two being precisely alike or sufficiently so as to make one such application develop a principle necessarily governing tbe other, at substantially every meeting here for tbe decision of eases. [305] Many expressions in decided cases exist which are often, and are now, referred to as applicable to facts materially different from those in mind at the time they originated; a much broader meaning being ascribed thereto than was intended or can fairly be done. We often see the one used, seemingly now supposed to have controlling significance, that if the employee has as good or better opportunity to know of the defects as the master he assumes the risk. That is good law, but it does not suggest that defects which are discoverable by the exercise of such care as is required to be exercised by the master are necessarily discoverable by such attention to his surroundings as an employee is bound to exercise.- Defects may be such as to be perfectly plain to the former and not attract the attention of the latter, since no duty of inspection rests with the servant; to turn aside from the acts of operating in order to specially look or search for defects, in the absence of some circumstance reasonably efficient to suggest existence thereof. The employee is only required to see and comprehend those imperfections which are so significant as to ordinarily attract the attention of a person under the same or similar circumstances, in the exercise of ordinary care, and whether the servant in any particular instance is chargeable with knowledge of conditions imperiling his personal safety is, generally, though of course not always, a jury question. The foregoing need not be emphasized by the citation of authorities. Moreover it renders unnecessary any detailed consideration of the cases pressed upon our attention. It is sufficient to say in regard thereto that the facts now presented are so different from those in any one of such cases as to preclude the same from being regarded as controlling. It is the opinion of the court that the evidence does not conclusively show that all of the imperfections which in the whole constituted the dangerous condition found by the jury were of that open, obvious nature which respondent, while [306] engaged in bis work, would necessarily bave seen bad be exercised ordinary care, and the evidence on bis part is to tbe effect tbat be in fact did not observe tbem. It must be said, and is, substantially at least, conceded that there was evidence tending to show tbe existence of each of the found elements of tbe dangerous condition. One thereof is tbe insufficient elevation of tbe outer rail at tbe curve. It may well be, we are safe in saying, tbat such element would not, or might not, attract tbe attention of a trainman of experience in tbe exercise of ordinary care while engaged as respondent was before tbe accident, whatever might be bis grade of service. Tbat of itself was sufficient to warrant submitting the question of assumption of risk to the jury, even if some other of tbe detail imperfections was, or should bave been, known to respondent. This conclusion necessarily disposes of tbe claim tbat such 'assumption appears from tbe evidence as a matter of law, which claim is tbe principal one relied upon for a reversal, and we will, therefore, not further pursue tbe subject. Tbe only other contention made is tbat tbe evidence establishes contributory negligence as matter of law. Tbat is largely, if not efficiently, met by tbe conclusion tbat tbe question of assumption of risk was properly submitted to tbe jury, and tbe refusal to disturb tbe .finding was not' error. There is ample evidence tending to show tbat, if respondent be not chargeable with knowledge of tbe dangerous condition of tbe track and roadbed, be was not guilty of want of ordinary care in causing tbe engine and cars to move as they did. Tbe first conclusion leaves no escape which we can see from tbe second. It is true tbe evidence shows tbat respondent might, by. tbe use of tbe brakes, bave held tbe string of cars to be switched after they were pushed up the grade to tbe proper point, till tbe engine bad backed clear of tbe point of tbe switch, and then let tbem run down tbe grade by their own [307] momentum, rendering it unnecessary for tbe engine to move toward and onto tbe curve at tbe great speed wbicb probably rendered operative tbe dangerous condition of tbe track and roadbed and cause tbe derailment. But there is other evidence tending to show that if tbe cars' bad been so held they would not thereafter have attained a sufficient speed by tbe mere force of gravity to pass fully in on tbe switch track and, therefore, in order to render tbe operation of making tbe drop switch successful, it was reasonably necessary, after tbe cars were pushed up tbe grade, to give them return motion at tbe rate of some four miles per hour, more or less, as was done, wbicb motion combined with tbe grade gave them such speed as to render it necessary for tbe engine to pass over tbe curve at a high rate of speed, in order to clear tbe point of tbe switch before they reached tbe same. So there was evidence tending to show that tbe whole operation wbicb was directed by respondent was not inconsistent with ordinary care in the absence of knowledge on bis part, actual or constructive, that tbe track and roadbed were unsuitable therefor. Tbe result of tbe foregoing is that tbe judgment appealed from must be affirmed. By the CJourt. — So ordered.