Tomko v. Central Railroad

72 N.Y. St. Rep. 651

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1896
• Status: Published

Opinion

HATCH, J

—The substantial claim made by plaintiff, in his opening to the jury, was that the defendant was guilty of negligence in running trains and engines over its tracks, at the place where the injury occurred, in a reverse way from which trains were ordinarily run thereon at other places upon its line, without promulgating a rule relating thereto, or otherwise bringing home notice to plaintiff of the existence of such custom. In the view we take of this case, it is not necessary to determine what defendant’s obligations were in this respect. Plaintiff was a track laborer ; had been employed upon the defendant’s road for a period of two years, but, at the particular place of injury, only a short time; and was without'information of the afore-mentioned custom of operating trains, but supposed that they were operated at this place in like manner as at other places upon the line where he had before worked. While engaged in his employment, on the west-bound track, facing towards the west, a train passed him on the east-bound track. The train ran to a siding a short distance beyond, and shunted its cars thereon. The engine then started on its return over the same track that it had run out on. At about the same time a train was running upon the west-bound track, and both engines ran nearly side by side on the different tracks in the same direction. Plaintiff, hearing a bell on the locomotive, looked over his shoulder, saw the locomotive coming west, and stepped from the west-bound track to the east bound track, where he was, shortly after, struck by the engine approaching upon that track, and seriously injured. It does not appear that he looked in either direction when he stepped upon the east-bound track, or that he, in any manner, made any observation to protect himself from injury while upon this track. It is not apparent why he did not discover the approach of both engines ishen he looked to the east. They were both running near together, and it does not appear but that both were visible to the sight. No obstructions existed, and, if he looked and saw one, care would have enabled him to see the other. At least, no reason is shown why he should not have seen it. The law exacts care and caution, having regard to the dangers to be encountered. A person cannot place himself in a dangerous position, and omit the vigilance which would apprise him of the danger, without being chargeable with negligence. The use by plaintiff of his faculty of sight, exercised with care, would have apprised him of the approach of both engines. His failure in this regard constitutes negligence. It also appeared that there were a number of employes at work with the plaintiff who received no injury, and counsel stated that the north side (north of the west-bound track) was the safe side, but that plaintiff went off to the south side. Here was a perfectly safe place where plaintiff could have stepped as easily as to make use of the dangerous place. He voluntarily chose the latter, and when he did so it became incumbent upon him to exercise all his faculties to protect himselfi The track of a railroad is a dangerous place, and when a person’s employment calls him to its use, he is necessarily exposed to danger from passing trains, and is required to be upon the lookout in all directions. This is a risk which is necessarily assumed as an incident to his employment; and, when, he voluntarily exchanges a safe place for one of danger, he assumes whatever of risk there may be, from any source, in the use of the dangerous place, and cannot be heard in complaint if he is thereby injured. Heaney v. L. L. Railroad Co., 112 N. Y. 122 ; 20 St. Rep. 296. And this result follows no matter how, or in what manner, defendants uses its tracks or operates its trains. The exceptions should be overruled, motion for a new trial denied, and judgment order for defendant, with costs,

All concur.