Evans ex rel. Evans v. Lake Shore & Michigan Southern Railway Co.

19 N.Y. Sup. Ct. 289

• Court: New York Supreme Court
• Decided: October 15, 1877
• Status: Published

Opinion

Merwin, J.:

The claim of negligence against the defendant in this case, is based on the fact that the target on the switch post was located in such a position that it became dangerous, and that by means of this the plaintiff was injured. This target had not been changed during plaintiff’s employment and plaintiff had become familiar with its position, had often passed it and had seen it used frequently. The question, therefore, arises, whether the danger arising from this was one of the dangers assumed by plaintiff, as incident to his employment.

In Gibson v. Erie Railway Company (63 N. Y., 449) the plaintiff’s intestate was freight conductor in defendant’s employ. As the train started he caught hold of a passing car and began to climb up to the top by the ladder at the side, and was struck by the projecting roof of the depot and killed. The roof was two feet nine inches from the top of the car. The roof had been the same for twenty years and deceased had been in the defendant’s employ for seven years, and over the road daily. His usual place between stations was in the, caboose, and there was no evidence that it was a part of his duty as conductor to get on top of the cars, or that his doing so at the time of the accident had any necessary connection with his duties. It was held that the risk from the roof was assumed by the deceased when he entered the employment of defendant, he being familiar with the place, and the peculiar character of the roof being as patent to him as to any of defendant’s officers; also, that there was contributory negligence, it not appearing that what deceased did had any neces sary connection with his duties as conductor.

The case at bar is quite analogous to the Gibson case, and I think controlled by it. Here the plaintiff was familiar with the target, the danger, if any, was patent, the plaintiff had seen the switch used, passed it daily, its dangerous character seems to have been in his mind at the time, and he thought he had passed it. " He mistook other lights for the one on the target, and then leaned out and the injury happened. It is suggested by plaintiff’s counsel that actual knowledge of the dangerous character of the target'was not shown in plaintiff. If by actual knowledge is meant experimental knowledge, that is not shown. Nor was it in the Gibson case. Plaintiff, however, must have known of the nearness of the target to the track or cars. The rule is, that an employe who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge, and also the risks and perils incident to the use of the machinery and property of the employer as it was at the time of the employment, so far as such risks were apparent. (Gibson Case,supra; Owen v. N. Y. C. R. R. Co., 1 Lansing, 108; "Wharton on Negligence, § 211.)

"Within this rule the nonsuit was properly granted.

It is further claimed by plaintiff that the minority of plaintiff is an element in his favor distinguishing this from the general rule. There is no dispute but that plaintiff was of sufficient age and intelligence to understand fully the duties of his employment, as well as its dangers. That being so, his minority does not affect the question. (King v. The Boston and W. R. R., 9 Gush., 112; Coombs v. New Bedford Cordage Co., 102 Mass., 572, 585; Whart., § 216.)

The motion for new trial should be denied and judgment ordered for defendant on the nonsuit. So ordered.

Present — Talcott, P. J"., Smith and Meewin, JJ.

Motion for new trial denied, and judgment ordered for defendant on nonsuit.