Administrator of Carbine v. Bennington & Rutland Railroad

61 Vt. 348

• Court: Supreme Court of Vermont
• Decided: January 15, 1889
• Status: Published

Opinion

The opinion of the court was delivered by

Tart, J.

The disposition of one question controls this case, •and renders the other questions di.-cussed immaterial. A servant assumes all ordinary risks incident to his employment. By •entering upon, and continuing in his service, he is presumed to ■fake upon himself its natural and ordinary risks and perils.. Railroad managers are hound by law to provide their servants with safe and suitable roadbeds and machinery, including all appliances for the discharge of their respective duties; there is •an implied contract on their parí; to perform this duty. No •authorities contravene the rules above stated. But a servant assumes no risk caused by his employer’s breach of dutjq unless lie has knowledge of the danger thereby caused, and voluntarily •continues in the employment. If with this knowledge lie does •continue, the increased danger becomes an incident of the service which ho assumes, and for any injury resulting therefrom the master is not liable. By the acceptance of the service and the continuance therein, the servant assumes the hazard incident to obvious and known dangers. Gibson v. Erie Ry. Co., 63 N. Y. 449; DeForest v. Jewett, 88 N. Y. 264; Buzzel v. Laconia Mfg. Co., 48 Me. 113; Baylor v. Railroad Co., 30 N. J Law, 23; B & O. R. R. Co. v. Striker, 51 Md. 47; Devitt v. Pacific Rd. Co., 50 Mo. 302; Smith v. Ry. Co., 69 Mo. 62; Caguey v. R. R. Co., ibid, 416.

The plaintiff’s intestate had been, at the time of his death, seven months in the employ of the defendant as a brakeman ; he was ah experienced one, having acted as such for many years. The testimony tended to show that while on the top of a coal car, he was hit by a board in the arch of a bridge near "Walling-ford and killed; that a person could not stand on the top of a car and ride through the bridge, the latter being too low; that the train upon which Carbine was employed usually contained coal cars, which were higher than common ones ; that he was-frequently on them,-knew of their height, and had'ridden’on them, passed through the bridge daily, and must have known of its height and condition. The case standing in this position, the jury were told, that if Carbine knew of the defective and dangerous condition of the bridge, he could not recover; that if he engaged as brakeman with knowledge of what his duties were, and continued as brakeman when he knew of the dangers attendant upon his remaining there, then he assumed the risks that he might incur by remaining in the defendant’s employ ; that if lie-elected to continue in his employment after he knew of the dangerous character of the bridge, he continued at his own risk. These instructions correctly state _ the law as applicable to the case at. bar. The plaintiff insists that “ the continuance of the servant in his employment with knowledge of the defect is not necessarily a bar to his recovery.” As an abstract proposition this-may be correct; there may be exceptions to the general rule, cases where a servant would have a right of recovery although he continues in service with knowledge of defects in the instrumentalities of his vocation; he may know of a defect, but not of the hazard likely to arise from it; lie may have known of it, but had reason to believe it had been remedied ; it has been held in some jurisdictions, that if upon notice the master assures the servant that he will remove the defect, and the servant continues in the employment on such assurance, lie is presumed not to have waived the defect, and may maintain an action against the master for any injury caused by it. But whatever these cases are, they constitute exceptions to the general rule above stated. We do not say that an employe who takes a risk that imperils his safety, cannot in any case maintain an action, but we do hold that if he knowingly and deliberately assumes a risk that leads him into immediate danger, he cannot recover for injuries that arise from perils that are obvious and certain. The case at bar was not within any exception to the general rule. There is nothing in the record to show that there was any testimony tending to support a case within any exception, but the case calls for the application of the naked rule, that if the intestate continued in service with a knowledge of the dangerous character of the bridge, he did so at his peril. Having assumed the perils of his employment in respect to the bridge, the question of contributory negligence was not in the case, for if he was not guilty of it, he had no right of recovery ; the case stands exactly the same in regard' to a lack or want of means warning or notifying a brakeman of the approach to the bridge ; the want of such means of warnings, or rather the perils arising therefrom, were risks he assumed by continuing in his employment. There was no error in the illustrations used by the court. The bridge was built in 1862 and there was no question in the case affected by the statute of 1872 or R. L. ss. 3418, 3119; and it is difficult to see how there could have been if the structure had been erected since 1872, for Carbine having assumed the perils of his employment in respect to the bridge, the negligence of the defendant in that aspect of the case became immaterial.

Judgment affirmed.

All coneur.