Haight, J.:
The plaintiff was in the employ of the defendant as drawbarman j he was engaged as one of a gang of men whose duties were to take a train of cars when it arrived, break it up, switch the cars upon the tracks on which they could be unloaded, and to gather up cars and make up trains to go out upon the road. It was a part of the plaintiff’s business to go up to the Lackawanna spur, which was a track leading from the defendant’s road onto the Lackawanna road, and to do the work necessary to transfer cars from one road to the other. "When he first engaged in the defendant’s employ he worked day-times, afterwards he was engaged to work nights in the defendant’s yard. It was his duty to handle the drawbar of the engine, to couple it on and uncouple it from cars, to throw the switch and, when required, to couple and uncouple cars from each other. The Lacka-wanna spur was the last switch farthest out in the defendant’s yard. On the 16th day of December, 1883, at about seven o’clock in the evening, the plaintiff, in company with the other members of the gang with which he worked, was engaged in pulling a pin to cut off a car on the Lackawanna spur. As he stepped back he stepped on to the guard rail, when his heel slipped in between it and the rail of the main track; he fell down and the car passed over him cutting off his legs.
Upon the trial it was claimed that the defendant was guilty of negligence for the reasons: First. That the guard rail was n-ot properly constructed. Second. That it was not blocked between the guard rail and the rail of the main track. At every place where there is a switch by which one track enters another, the inner rails have to cross each other thus necessitating an opening through those rails. The device by which this is accomplished is known as a frog. Opposite these frogs guard rails have to be placed so as to keep the cars from leaving the track at the opening in the inner rails. These [147]*147guard rails are from twelve to fifteen feet long and have to be placed from two and one-half to throe inches from the main rail, opposite the frog, and then they deflect toward the ends so that they are four or five inches from the main rail. This 'permits the flange of the wheel of the approaching car to enter between the guard rail and the rail of the main track and pass through. The evidence given on the part of the plaintiff is to the effect that the plaintiff’s foot was caught in the guard rail opposite the frog of the Lackawanna spur at about two feet from the west end of the guard rail. That at this point it was about three inches or three and one-sixteentli inches from the main rail; that there were a large number of guard rails in the defendants yards, placed about the same distance from the main rail. That in the examination made of them some were found to vary a little; one was found to be about two and three-fourth inches from the main rail and another to be three and one-half inches. The distance however in each guard rail varied in going from the end to the center of the rail. "We fail to discover any evidence tending to show that the guard rail in question was improperly constructed, when we bear in mind that the end of the rail must be deflected from the main rail a sufficient distance so that the flange of the -wheel cannot catch upon the end, and that the place where the plaintiff’s foot was caught was within two feet of the end. All of the roadmastérs and experts speaking upon the subject have left us to understand that three inches at that point would be about the necessary and approved distance for placing the guard rail.
We are, therefore, unable to discover any negligence chargeable upon the defendant as to the construction of the guard rail. As to whether or not it was the duty of the defendant to have caused blocks to be placed between the guard rail and the rail of the main track, a different question is presented. Some of the witnesses were of the opinion that the use of blocks was. practical, and that they rendered them safer in this regard, whilst other witnesses were of the opinion that the passing trains soon, loosened the blocks and rendered them dangerous, and that they did not make the track safer for the employees working thereon; that several instances had occurred on roads where the blocks were in use, of employees getting their feet caught and injured; that in the use of blocks they have [148]*148to be made thin so as to leave space for the flange of the wheel to ' pass through ; that the flange of the wheel extends down below the ball of the rail, so that the sole of the boot is still liable to be caught and held under the balls of the rail. It was the duty of the defendant to adopt the apjiroved mode of construction in general use. Some of the railroads had adopted blocks to a limited extent and some had not. The defendant had not adopted them. As to whether or not their use would have rendered fell© tracks safer would doubtless have been a question for the jury, had it not been for the fact that the plaintiff in entering the employ of the defendant did so at a time before the blocks had been adopted by the defendant or used in its yards, and knowing that they were not in use.
At the conclusion of the evidence the defendant’s counsel requested the court to charge that “the plaintiff, having entered the service of the defendant with its guard rails unblocked, and in practically the same condition that the guard rail in question was at the time of the accident, and the guard rails being in plain sight, and the plaintiff having continued in the service of the defendant with the guard rails in that condition, he assumed the apparent risk incident to their existence in the performance of his duty, and cannot recover.” Also, that “ if the jury shall find that at the time the plaintiff entered the defendant’s employment the guard rails, on that part of the road where he worked, were unblocked, and practically in the same condition that the guard rail in question was at the time of the accident, and that he continued in that employment with the guard rails in the same condition up to the time of the accident, he cannot recover in this action.” The defendant’s counsel also requested the court to charge the jury “ that the accident which caused the plaintiff’s injuries was, under the circumstances of this case, a risk which he assumed and for which the defendant is not liable.” The court refused to charge either of the requests and to such refusal the defendant duly excepted.
In the case of Gibson v. The Erie Railway Company (63 N. Y., 449) it was held that where a servant enters upon employment from its nature necessarily hazardous, he assumes the usual risks and perils of the service and also those risks which are apparent to ordinary observation. If he accepts service with knowledge of the character and position of structures from which employees might be [149]*149liable to receive injury, be cannot call upon bis master to make alterations to secure greater safety, or in case of injury bold bim liable; that the defendant was not liable for the death of a conductor of a freight train who was struck and killed by a projecting roof of a depot building where be bad been for a long time familiar with the depot and the road passing it.
In the case of De Forest v. Jewett (88 N.
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Haight, J.:
The plaintiff was in the employ of the defendant as drawbarman j he was engaged as one of a gang of men whose duties were to take a train of cars when it arrived, break it up, switch the cars upon the tracks on which they could be unloaded, and to gather up cars and make up trains to go out upon the road. It was a part of the plaintiff’s business to go up to the Lackawanna spur, which was a track leading from the defendant’s road onto the Lackawanna road, and to do the work necessary to transfer cars from one road to the other. "When he first engaged in the defendant’s employ he worked day-times, afterwards he was engaged to work nights in the defendant’s yard. It was his duty to handle the drawbar of the engine, to couple it on and uncouple it from cars, to throw the switch and, when required, to couple and uncouple cars from each other. The Lacka-wanna spur was the last switch farthest out in the defendant’s yard. On the 16th day of December, 1883, at about seven o’clock in the evening, the plaintiff, in company with the other members of the gang with which he worked, was engaged in pulling a pin to cut off a car on the Lackawanna spur. As he stepped back he stepped on to the guard rail, when his heel slipped in between it and the rail of the main track; he fell down and the car passed over him cutting off his legs.
Upon the trial it was claimed that the defendant was guilty of negligence for the reasons: First. That the guard rail was n-ot properly constructed. Second. That it was not blocked between the guard rail and the rail of the main track. At every place where there is a switch by which one track enters another, the inner rails have to cross each other thus necessitating an opening through those rails. The device by which this is accomplished is known as a frog. Opposite these frogs guard rails have to be placed so as to keep the cars from leaving the track at the opening in the inner rails. These [147]*147guard rails are from twelve to fifteen feet long and have to be placed from two and one-half to throe inches from the main rail, opposite the frog, and then they deflect toward the ends so that they are four or five inches from the main rail. This 'permits the flange of the wheel of the approaching car to enter between the guard rail and the rail of the main track and pass through. The evidence given on the part of the plaintiff is to the effect that the plaintiff’s foot was caught in the guard rail opposite the frog of the Lackawanna spur at about two feet from the west end of the guard rail. That at this point it was about three inches or three and one-sixteentli inches from the main rail; that there were a large number of guard rails in the defendants yards, placed about the same distance from the main rail. That in the examination made of them some were found to vary a little; one was found to be about two and three-fourth inches from the main rail and another to be three and one-half inches. The distance however in each guard rail varied in going from the end to the center of the rail. "We fail to discover any evidence tending to show that the guard rail in question was improperly constructed, when we bear in mind that the end of the rail must be deflected from the main rail a sufficient distance so that the flange of the -wheel cannot catch upon the end, and that the place where the plaintiff’s foot was caught was within two feet of the end. All of the roadmastérs and experts speaking upon the subject have left us to understand that three inches at that point would be about the necessary and approved distance for placing the guard rail.
We are, therefore, unable to discover any negligence chargeable upon the defendant as to the construction of the guard rail. As to whether or not it was the duty of the defendant to have caused blocks to be placed between the guard rail and the rail of the main track, a different question is presented. Some of the witnesses were of the opinion that the use of blocks was. practical, and that they rendered them safer in this regard, whilst other witnesses were of the opinion that the passing trains soon, loosened the blocks and rendered them dangerous, and that they did not make the track safer for the employees working thereon; that several instances had occurred on roads where the blocks were in use, of employees getting their feet caught and injured; that in the use of blocks they have [148]*148to be made thin so as to leave space for the flange of the wheel to ' pass through ; that the flange of the wheel extends down below the ball of the rail, so that the sole of the boot is still liable to be caught and held under the balls of the rail. It was the duty of the defendant to adopt the apjiroved mode of construction in general use. Some of the railroads had adopted blocks to a limited extent and some had not. The defendant had not adopted them. As to whether or not their use would have rendered fell© tracks safer would doubtless have been a question for the jury, had it not been for the fact that the plaintiff in entering the employ of the defendant did so at a time before the blocks had been adopted by the defendant or used in its yards, and knowing that they were not in use.
At the conclusion of the evidence the defendant’s counsel requested the court to charge that “the plaintiff, having entered the service of the defendant with its guard rails unblocked, and in practically the same condition that the guard rail in question was at the time of the accident, and the guard rails being in plain sight, and the plaintiff having continued in the service of the defendant with the guard rails in that condition, he assumed the apparent risk incident to their existence in the performance of his duty, and cannot recover.” Also, that “ if the jury shall find that at the time the plaintiff entered the defendant’s employment the guard rails, on that part of the road where he worked, were unblocked, and practically in the same condition that the guard rail in question was at the time of the accident, and that he continued in that employment with the guard rails in the same condition up to the time of the accident, he cannot recover in this action.” The defendant’s counsel also requested the court to charge the jury “ that the accident which caused the plaintiff’s injuries was, under the circumstances of this case, a risk which he assumed and for which the defendant is not liable.” The court refused to charge either of the requests and to such refusal the defendant duly excepted.
In the case of Gibson v. The Erie Railway Company (63 N. Y., 449) it was held that where a servant enters upon employment from its nature necessarily hazardous, he assumes the usual risks and perils of the service and also those risks which are apparent to ordinary observation. If he accepts service with knowledge of the character and position of structures from which employees might be [149]*149liable to receive injury, be cannot call upon bis master to make alterations to secure greater safety, or in case of injury bold bim liable; that the defendant was not liable for the death of a conductor of a freight train who was struck and killed by a projecting roof of a depot building where be bad been for a long time familiar with the depot and the road passing it.
In the case of De Forest v. Jewett (88 N. Y., 264), it was held that the defendant was not liable for the death of a switchman and car-coupler, caused by stepping into one of the sluices and falling under the cars whilst working in a freight yard drained by a system of small, open ditches running across the tracks between the ties, which were in existence when he entered the employment, and remained without any change or alteration, every one of which was well known to him. Approving the rule laid down in the case of Gibson v. The Erie Railway Company (supra) ; Lovejoy v. Boston and Lowell Railroad Company (125 Mass., 79).
These guard rails wer.e open, visible structures at the time the plaintiff entered the defendant’s employ. They were located within the yard in which he was engaged to work. They were not blocked, and he knew that they were not. The only possible theory upon which a distinction can be made from the cases referred to, is that he did not know of the existence of this particular guard rail.
Upon his direct examination he testified that he had never been on that guard rail before, or done any braking or business over it. He then says: “ I did not know whether there was a guard rail there or not, or what condition it was in.” He, however, knew that there were guard rails opposite to each frog. He knew what they were for, and their shape; had seen scores of them. On his cross-examination he testified that it was a part of his business to go up to the Lackawanna spur; “if there were cars to go there to be put on the Lackawanna road, or if we wanted cars from there, it was my business to go there and do that work just as much as in any other part of the yard; that spur was there when I first went to work; 1 first saw the spur in the first part of the time I worked there nights / 1 saw itthe?'e, and knew it toas there ; I had never been on the spur before the accident.” So that it would appear whilst he had never been on the spur before, he had seen it and knew of its existence.
It consequently appears to us that he did know of the existence [150]*150of tbis guard rail. He bad seen and knew of tbe existence of tbis track running from tlie defendant’s road on to the Lackawanna road. He was engaged at work upon tbis spur track at tbe time of the accident. Of necessity there bad to be a switch, a frog and guard rails at that point. We fail to see bow tbe case is distinguishable from either of tbe above cases, or why the same rule should not prevail.
Again, we question tbe right of tbe plaintiff to recover, even though be did not have actual knowledge of tbe precise location of tbe guard rail in question. It being an open, visible structure, be is deemed to have assumed tbe risk in bis contract of employment. Had he stubbed bis foot against tbe rail and fallen be would hardly be excused from contributory negligence by saying that be did not know that tbe rail was there.
Tbe judgment should be reversed and a new trial ordered, with costs to abide event.
Smith, P. J., and Barker, J., concurred.