West v. Southern Pac. Co.

PHILIPS, District Judge, after stating the case as above, delivered the opinion of the court. The plaintiff cannot be heard to complain of any supposed neglect of the company in constructing its culverts without coverings. When he accepted service as a brakeman on this road, he knew of this condition of the culverts. For three years he continued in such service, with full knowledge of the fact, without objection. In this respect the rule “volenti non fit injuria” applies. The servant is free to accept or refuse employment on a roadway of a particular construction. If he accepts such employment, and continues therein, as in this case,, with full knowledge of the structures, without objection, the language of the court in Lovejoy v. Railroad Corp., 125 Mass. 79, is quite applicable: “The abutments of 46 bridges, numerous buildings, entrances to stations, and other structures pn the line of the defendant’s road, were the same distance from the track. These facts were known to the plaintiff, though he testified that he had not, previously to his alleged injury, noticed this particular post. The only negligence imputed to the defendant was in placing this post so near the track. As between the plaintiff and the defendant, it was immaterial whether it would have been more prudent to have placed the signal posts, abutments of bridges, and other structures, so numerous on i;he line of the defendant’s road, more than 3 feet 8 inches from the track. If there was any danger to the plaintiff, while in the performance of his duty, from the structures thus placed, it was a risk that he had assumed. He knew the manner in which the road was constructed, the proximity of the track to these structures, and the method 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. 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.” The real question for decision is, was it actionable negligence for the railroad company to leave the culvert uncovered at the point of this accident? The law imposes upon the master the duty of exercising reasonable care to provide his employé a reasonably safe place at which he is required to work. At and about a switch, where a brakeman may be expected to alight from the train for the purpose of turning the switch, the company may be held liable for an injury to the brakeman occasioned by the proximity of a pitfall like an uncovered culvert, the presence of which is unknown to the employé at the time, or where the dangerous pitfall or hole, although exposed to view, so that the workman, if thoughtful and observant, might see and avoid it, yet, by reason of his intentness upon the immediate work in which he is engaged, his attention for the moment is diverted. The cases principally relied on by counsel for plaintiff (Millen v. Railroad Co. [Sup.] 46 N. Y. Supp. 748; Slauson v. Railway Co., 60 N. Y. 608; Railway Co. v. Teeter, 27 U. S. App. 316, 11 C. C. A. 332, and 63 [395] Fed. 527; Franklin v. Railway Co. [Minn.] 34 N. W. 898) presented a state of facts from which it appeared that the immediate vicinity of the place where the servant was called upon by the employer tc perform his work was so near to some hidden hole or opening or obstacle as to expose the servant to the danger of stepping into the one or coming against the other, or presented the instance, just above alluded to, where the dangerous opening or obstacle was not observed by the employe on account of his attention for the instant being diverted to the execution of the work in which he was engaged. But such is not the case presented by this record. The culvert in question was 281 feet from the switch. It was not, within the meaning of the rule, in the vicinity of the point where the defendant company had assigned the plaintiff to work. By express rule, known to the plaintiff, the defendant had enjoined upon the trainmen that, in reaching the side track at Moline from the west, they should pass onto the side track by throwing the switch at the west end of the switch limits. The switch where the defendant had by its rule assigned this piaintiff to work was at the west, where no such accident would have befallen him. He knew, from the rule of the company, that the eastern switch was not designed nor intended to be used by the company in backing east-bound trains through it onto the side track. He knew that the trainmen, in thus reaching the siding, were acting in violation of the explicit published rule of the company. And while he is not to be held responsible for the misconduct in this respect of the conductor or engineer, he never protested against this infraction of the rule, nor advised his employer thereof. For the use designed by the company of the eastern switch, no probable responsible hazard on the part of the defendant could be incurred by this brakeman on account of the uncovered culvert 281 feet east of the switch. This is so, for the obvious reason that the duty of turning the switch for the admission of a west-bound train to the side track would devolve on the brakeman nearest the front of the train, when, presumptively, the engine having halted near the switch, the brakeman would dismount from the train at a point far within the bounds of 281 feet. If a liability is to attach to the company because of the unusual and not to be reasonably anticipated incident of this brakeman undertaking to step off the train 281 feet from the switch which he was to operate, simply because the train did not stop nearer the switch, where is the line of accountability on the part of the company to be drawn? There would be just as much reason and justice in authorizing a recovery, had the train gone 1,000 feet further to the east than was necessary, and the defendant had undertaken to step therefrom and fallen into a culvert. Where, as in this case, the uncovered pitfall was so far beyond the place where the injured party was assigned by his master to work as to admit of no divided opinion among reasonable men as to its being beyond the reasonable vicinity of the place for the performance of the required work, the question of fact passes out of the exclusive domain of a jury, and becomes solely a question of law for the determination of the court. The judgment of the circuit court is therefore affirmed.