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Commentaries on the law of negligence in all relations online

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maintaining overhead bridges so low that brakemen engaged in their
ordinary duties upon the tops of the cars are liable to be brought in
contact with them, 20 and which hold that railway trainmen do not ac-
cept the risk of death or injury from such negligence. 21 One of these
cases carries the doctrine so far as to hold that the experience of the
trainman who has been injured or killed by coming in contact with
the overhead bridge does not necessarily take the case out of the rule,
but that a conductor or brakeman on a freight-train has the right to
assume that the company has constructed its bridges sufficiently high
to render them safe ; and that, if injured by a collision with overhead
timbers, of the condition of which he has no khowledge or reasonable
means of knowledge, he is entitled to recover, although he may have
passed over the road and through the bridge for several months pre-
ceding the accident. 22 Here, as elsewhere, many of the decisions deal
with the subject with reference to the knowledge, or means of knowl-
edge, possessed by the employ^, of the existence, height and character
of the bridge, holding that he does not accept the risk if ignorant of
the source of danger, and charging the railroad company with lia-
bility. 28 With reference to the question of the knowledge of the
brakeman of this source of danger, it has been held that the fact of
giving a brakeman a printed book of rules, when he is first employed,
which advises him that it is dangerous to stand erect on the top of

* Atchison &c. R. Co. v. Rowan, R. Co., 21 S. C. 550; 8. c. 53 Am.

55 Kan. 270; s. c. 39 Pac. Rep. 1010; Rep. 699, note. In Kentucky, bal-

Cincinnati &c. R. Co. v. Sampson, ancing the negligence of the rail-

97 Ky. 65; Gulf Ac. R. Co. v. Knox, road company with that of the in-

25 Tex. Civ. App. 450; s. c. 61 S. W. jured brakeman, it has been held

Rep. 969. that a railroad company is liable

31 Pennsylvania Co. v. Sears, 136 for injuries sustained by a brake-

Ind. 460; s. c. 48 Alb. L. J. 11; 34 man by being brought in contact,

N. E. Rep. 15; Northern &c. R. Co. while standing upon the top of a

v. Mortenson, 27 U. S. App. 313; freight-car, with an overhead bridge

s. c. 63 Fed. Rep. 530; 11 C. C. A. maintained by the company, which,

335 ; Chicago &c. R. Co. v. Carpenter, with slight care, could have been

12 U. S. App. 392; s. c. 56 Fed. Rep. raised sufficiently to clear one in

451; 5 C. C. A. 551. such a position, although he had

88 St. Louis &c. R. Co. v. Irwin, 37 been over the road several times,

Kan. 701; s. c. 16 Pac. Rep. 146. where his attention was diverted by

23 Baltimore &c. R. Co. v. Rowan, the sudden necessity of warning

104 Ind. 88; Atlee v. South Care- those on the rear portion of the

Una R. Co., 21 S. C. 550; s. c. 53 train that the train had become sep-

Am. Rep. 699. Thus, if he is a new arated: Cincinnati Ac. R. Co. v.

hand, and has not been warned of Sampson, 97 Ky. 65; s. c. 30 S. W.

the danger, the case should go to Rep. 12; 16 Ky. L. Rep. 819.
the jury: Atlee v. South Carolina

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4 Thomp. Xeg.] assumption of risk by the servant.

cars, and especially on high cars, when passing under a certain bridge,
and that there are no tell-tales on the bridge, is not sufficient, as mat-
ter of law, to show that the brakeman, killed by striking the bridge
when standing erect on a high car, assumed the risk of the injury. 24
Again, railroad brakemen have been exonerated from an assumption
of the risk of this source of danger under special circumstances, — as
where the back of the brakeman was turned toward the bridge, in ap-
plying the brakes in the discharge of his duty, in an effort to stop
the train, where the train would have stopped before it reached the
bridge if the brakes had been in good order, but failed to stop by rea-
son of their being out of order, and he was ignorant of their ineffi-
ciency. 85 Some of the cases deal with the question on the footing of
negligence, and contributory negligence, — holding that it is negligence
on the part of a railroad company to construct an overhead bridge so
low as to be a constant peril to the lives of its employes, and that it
cannot excuse itself simply by showing that the killed or injured em-
ploy6 knew that the structure was so low that he could not pass under
it in safety, while standing on the top of the cars; 26 but that contrib-
utory negligence on his part must be shown, which will be a question
for the jury. It is a part of this doctrine that negligence will not be
conclusively imputed to him if, at the time when he came in contact
with the overhead bridge, he was in the line of his duty, and his at-
tention presumably absorbed by the work which he had in hand. 21

§4753. Injury from Overhead Bridges while Standing upon
Freight-Can of Unusual Height. — It is well known that railway
freight-cars are not always of equal height, but that, since the intro-
duction of steel in the manufacture of rails, enabling railways to sus-
tain cars of much greater weight and tonnage, freight-cars are built
which are much higher than those which were formerly in ordinary
use, — sometimes exceeding the height of the old pattern of car by the
distance of twelve or fourteen inches. The railway brakeman is in a
position to be aware of this, and a strict and severe rule would put
upon him an acceptance of the risk of injury from it, provided he

84 Gulf Ac. R. Co. v. Knox, 25 Tex. 116 111. 206; Beard v. Chesapeake

Civ. App. 450; s. c. 61- S. W. Rep. Ac. R. Co., 90 Va. 351; Maher v.

969. Boston &c. R. Co., 158 Mass. 36 (was

"Beard v. Chesapeake &c. R. Co., facing the rear, as his duties re-

90 Va. 351; s. c. 18 S. E. Rep. 559. quired, and depended on tell-tale,

* Louisville &c. R. Co. v. Cooley, which was defective) ; Wallace v.

20 Ky. L. Rep. 1372; s. c. 5 Am. Neg. Central Vermont R. Co., 138 N. Y.

Rep. 399; 12 Am. & Eng. R. Cas. 302 (similar circumstances); Cin-

(N. S.) 553; 49 S. W. Rep. 339 (no cinnati &c. R. Co. v. Sampson, 97

off. rep.). Ky. 65; s. c. 30 S. W. Rep. 12; 16

" Chicago &c. R. Co. v. Johnson, Ky. L. Rep. 819.

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knows," or has means of knowledge, of the existence and height of the
overhead bridges upon the road. But the tendency seems to be to hold
that whether he accepts the risk of receiving such an injury, or, what
is substantially the same thing, whether he is guilty of contributory
negligence in standing on the top of a car of a higher pattern, which
has been introduced into the tpain, will not be determined as a mere
question of law, but will present a question of fact for a jury. 29

§ 4754. Effect of Failure of the Company to Maintain "Whip-
lashes" or "Tell-tales". — A well-known device adopted by railway
companies to give warning to their brakemen when standing on the
top of cars when they are approaching overhead bridges too near the
cars to enable the brakemen to pass underneath in safety when stand-
ing up, is to suspend a row of leather straps called "whip-lashes" or
"tell-tales" across the track at such a height that they will come in
contact with the face or hands of the brakeman and warn him that
the train is approaching a dangerously low bridge. Experience shows
that this device is not always effective, especially where the back of
the brakeman is turned toward the front of the train, while he is in
the act of setting or releasing a brake. 2 * Experience shows further
that this device is liable to get out of order and to remain so, through
the negligence of the company charged with its reparation. But a
failure to maintain such a "tell-tale" will not render the company lia-
ble for the death or injury of a brakeman who is brought in contact
with the low bridge, under all circumstances and conditions ; but the
negligence of the company, if such it be, must have been the proxi-
mate cause of the injury. The circumstances may be such as will
put the risk upon the injured brakeman, or impute contributory neg-
ligence to him. 80 But nevertheless, where "tell-tales" are maintained

"Atchison Ac. R. Co. v. Rowan, 55 mont R. Co., 138 N. Y. 302; s. c. 52

Kan. 270; s. c. 39 Pac. Rep. 1010; N. Y. St Rep. 351; 33 N. E. Rep.

Southern R. Co. v. Duvall, 22 Ky. 1069 (warning-signals, erected in

L. Rep. 56; s. c. 54 S. W. Rep. 741; compliance with statute, were out

56 S. W. Rep. 988 (no off. rep.) of order, and brakeman had no

(attention of the brakeman had not warning of the bridge),

been called to the danger of stand- "It was so held where, although

ing on a car higher than the rest the company failed to maintain a

of the train, and he was properly "tell-tale" over one of two parallel

on the top of the car in the dis- tracks passing under a low bridge,

charge of his duty) ; Chicago &c. R. a brakeman, while riding on the top

Co. v. Matthews, 48 111. App. 361 of a freight-train, where he was

(brakeman was required to be on learning the road, had been told to

top of the car at the particular look out for low bridges, and knew

point, although there was a rule of of the existence of the bridge, and

the company forbidding brakemen of its dangerous character, before

to be on the tops of unusually high the accident, but, nevertheless,

cars when approaching viaducts). climbed on the top of the car at a

" As in Wallace v. Central Ver- place • which would have been he-

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4 Thomp. Neg.] assumption of risk by the servant.

by a railway company to give warning of low bridges, whether in
pursuance of statute, or under a duty imposed by the principles of the
common law, a brakeman knowing such fact, and having no knowl-
edge or reason to believe that they are out of order, may rightfully as-
sume that they will be in proper order and position to give him timely
warning that the train is approaching a dangerously low bridge.* 1
On the other hand, a brakeman does not, as matter of law, assume the
risk of coming in contact with an overhead bridge, which is so low as
not to permit the passage of a person standing upright on the top
of a car, of which bridge no warning is given by "tell-tales" or other
signals, where the brakeman is on his first trip ; 82 nor, where such a
"tell-tale" has been erected, does a brakeman assume the risk of its be-
ing out. of order, unknown to him. 88 Nor is a brakeman guilty of
contributory negligence as matter of law where, when engaged in the
discharge of his duty, with his face toward the rear of the train, this
being the position most effectual to discharge such duty, he is struck
by a low bridge, of which he has no warning, in consequence of the
"tell-tales" required to be maintained by statute being out of order. 84
The "tell-tale" itself may be so improperly constructed, or allowed to
get so out of order, as to become a source of danger instead of safety
to brakeman on the top of the train, — as where the horizontal cord or
wire upon which the straps or whip-lashes were suspended, hung so
low that a brakeman came in oontact with it while standing on a car



ttoeen the bridge and the tell-tale
if there had been one: Allen v.
Boston &c. R. Co., 69 N. H t 271; s.
c. 39 Atl. Rep. 978. So, where a
brakeman was killed in the daytime,
by coming in contact with an over-
head bridge, which he had passed
under daily for three months, it was
held that there could be no recovery,
although the company had failed to
erect danger signal-cords: Hooper
y. Columbia &c. R. Co., 21 S. C. 541;
s. c. 53 Am. Rep. 691.

81 Maher v. Boston &c. R. Co., 158
Mass. 36; s. c. 32 N. E. Rep. 950;
Beard v. Chesapeake &c. R. Co., 90
Va. 351; Savannah &c. R. Co. v.
Day, 91 Ga. 676; s. c. 17 S. B. Rep.
959 (and the failure of such brake-
man to heed and remember a warn-
ing given by his fellow servants and
to see the bridge when within a
short distance of it, with his face
turned toward it and the bridge dis-
tinctly visible, does not constitute
such contributory negligence as will
defeat recovery). Compare Albring



v. New York Ac. R. Co., 61 N. Y.
Supp. 763; s. c. 46 App. Div. (N. Y.)
460 ("tell-tales" out of order, two
straps near the center entirely gone
and one tangled with the othefr —
deceased was struck while walking
leisurely forward on the train as it
approached the bridge, with the
"tell-tales" and bridge in plain
sight, — no recovery).

M Fitzgerald v. New York. Ac. R.
Co., 37 App. Div. (N. Y.) 127; s. c
55 N. Y. Supp. 1124.

"Hines v. New York Ac. R. Co.,
78 Hun (N. Y.) 239; s. c. 60 N. Y.
St Rep. 8; 28 N. Y. Supp. 829; s. c.
aff'd, 149 N. Y. 569; 43 N. B. Rep.
987. And so, where the "tell-tales"
did not hang low enough to reach
a person sitting on the top of a box-
car, and he was not warned of the
danger of sitting on the car: Wain-
right v. Lake Shore Ac. R. Co., 11
Ohio C. D. 530.

•* Wallace v. Central Vermont R.
Co., 138 N. Y. 302; s. c. 52 N. Y. St.
Rep. 351; 33 N. B. Rep. 1069.



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ACCEPTING THE RISKS OF RAILWAY SERVICE. [2d Ed.

of more than the usual height, — in which case the company will or-
dinarily be liable. 86

§ 4755. Bisk of Lateral Objects Too Near the Track, when As-
sumed. — A large number of modern decisions justify the conclusion
that railway trainmen assume the risk of being injured by being
brought in contact with erections or other objects of a permanent
character, situated so near the track that such trainmen are liable to
be brought into contact with them while upon the engine or cars in
the ordinary discharge of their duties, unless special caution is taken
on their part to prevent their heads, bodies or limbs from extending
too far outward beyond the limits of the locomotive or car on which
they are riding: always assuming, as in other cases, that they have
knowledge of such obstructions, or that the character of their experi-
ence has been such that knowledge may be fairly presumed, or fairly
imputed to them. As already seen, 86 this assumes that such objects
are of a permanent nature, and are not placed or left in position by
the special or casual negligence of the representative of the railway
company charged with the duty of keeping its track in a reasonably
safe condition. Under the application of this rule, risks of danger
from the following objects have been put upon the killed or injured
employ^ : — The risk, on the part of a yardmaster, of being knocked
from a moving train in a railway-yard, by an electric-light pole, erected
too near the track ; 87 the risk, on the part of a street-railway motor-
man, of being killed by colliding with a post located too near the
track, while riding on the step of the front platform of the car, lean-
ing outward and looking backward underneath the car, he being under
no necessity or duty of being in that position; 88 the risk of being
brought into contact with a cattle-guard, while stooping on the lower
step of a car to throw off a defective brake, where he is aware that a
large number of cattle-guards are dangerous because of their proximity
to the track, and that in this regard they are all substantially alike,
although he does not know that the particular cattle-guard is so near
the track as to be dangerous; 89 the risk of coming in contact with
wing fences at cattle-guards, while hanging low on a ladder at the
side of a car, in order to find out the cause of the car scraping the road-
bed, which scraping the brakeman hears ; 40 the risk of injury or death

* Darling v. New York &c. R. Co., M Sundy v. Savannah St. R. Co.,

17 R. I. 708; s. c. 24 Atl. Rep. 462. 96 Ga. 819; s. c. 23 S. E. Rep. 841.
"Ante, § 4618. » Missouri Ac. R. Co. v. Somers,

"Blackstone v. Central &c. R. Co., 71 Tex. 700; s. c. 9 S. W. Rep. 741;

112 Ga. 762; s. c. 38 S. E. Rep. 79. s. c. on subsequent appeal, 78 Tex.

See also, Anderberg v. Chicago &c. 439 ; 14 S. W. Rep. 779.

R. Co., 98 111. App. 207. "McKee v. Chicago &c. R. Co., 83

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4 Thomp. Neg.] assumption op risk by the servant.

caused by a collision with a skidway maintained by a lumber company,
on a level with the floor of a passenger-car, twenty-nine inches distant
from it, where a brakeman on the passenger-car, after setting his
brake, leans over and looks under the car to observe the effect of set-
ting it, but without special reason, he having notice of the presence of
the skidway; 41 the rislj, on the part of a locomotive-engineer, of be-
ing struck by a wooden post four feet from the track and two feet
from the tender-beam, put up as a temporary support to a bridge; 48
the risk, on the part of a brakeman, of coming into collision with a
projecting awning at a station, while climbing a car which had been
received from another road, and which was higher than others, and
had a side-ladder, but with which kindof car he was familiar ;" the
risk, on the part of a f reight-brakeman, of coming into contact with
a post situated near the track, he being well acquainted with its po-
sition, whether he actually knows the danger or not ; 44 the risk, on the
part of an experienced brakeman who knows of a bridge, and knows
further that cars may have only side-ladders, of coming into contact
with a pillar of such bridge, while getting down from the top of a car
by means of a side-ladder ;' B the risk, on the part of a switchman, of
the possibility of coming into contact with switches or structures near
the track, when boarding or riding upon freight-cars; 46 the risk, on
the part of a brakeman unacquainted with the yards, of being caught
between a car on the side of which he is riding, in the performance of
his duty as brakeman, and a fish-chute situated so near the track that
there is not sufficient room to allow his body to pass between it and
the car ; 47 the risk, on the part of a brakeman on a logging-train, who
has knowledge of the negligence of the company in leaving a tree
standing too close to the track, of being killed in consequence of the
logs loaded upon his cars coming into contact with the tree, where
he negligently loads the logs on his train so that they will strike the

Iowa 616; a. c. 13 L. R. A. 817; 10 Mass. 238; a. c. 33 N. B. Rep. 510

Rail. & Corp. L. J. 472; 48 Am. & (both at common law and under the

Eng. R. Cas. 154; 50 N. W. Rep. 209 Massachusetts Employers' Liability

(excellent dissenting opinion by Act).

Beck, C. J., on the ground that the M Austin v. Boston &c. R. Co., 164

preservation of human life and the Mass. 282; s. c. 41 N. B. Rep. 288.
protection of the property of the * Bell v. New York Ac. R. Co.. 168

railway company required the de- Mass. 443; s. c. 47 N. B. Rep. 118.
ceased to perform this duty, and to " Dacey v. New York Ac. R. Co.,

do it promptly). 168 Mass. 479; s. c. 47 N. B. Rep.

41 Walker v. Redington Lumber 418.
Co., 86 Me. 191; s. c. 29 Atl. Rep. 4T Phelps v. Chicago Ac. R. Co.,

979 (action by brakeman against 122 Mich. 171; s. c. 81 N. W. Rep.

lumber company). 101 (the plaintiff assumed the risk

"Thain v. Old Colony R. Co., 161 of riding upon the side of the car,

Mass. 353; s. c. 37 N. B. Rep. 309. and the company was not liable for

"Fisk v. Fitchburg R. Co., 158 his injuries).

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tree ; 48 the risk, on the part of a brakeman on a dirt-train, of com-
ing into contact with trees standing near a temporary track laid for
hauling dirt through the woods, where trees are standing all along
the track on both sides, and can easily be seen; 4 * the risk, on the part
of a brakeman, of being brought into contact with a cattle-chute near
a siding, where the danger is obvious, and he has passed the place al-
most daily for nearly two months, and has frequently taken cars out
upon the siding; 50 the risk incident to the existence of "clearing-posts"
between the switch-tracks and the main tracks along the line of the
road, although the employ^ does not know of the existence of such a
post at a particular switch; 51 the risk, on the part of a switchman en-
gaged in switching cars and familiar with the surroundings, in de-
scending from a moving car, knowing that he must strike a post near
the track if the train does not stop, and knowing that the engine is de-
fective in that clouds of steam escape from it, obstructing the vision
so as to prevent the engineer from seeing his signal to stop, — of being
struck by the post in consequence of the failure of the engineer to see
his signal; 52 the risk, on the part of a brakeman, of being injured by
being struck by a snow-hank left along the sides of the track by a
snow-plow. 58

§ 4756. Bisk of Lateral Objects Too Near the Track, when Not
Assumed. — On the other hand, on a principle already considered, 54 a
railway employ^ does not assume the risk of injury from objects placed
t>r left too near the track through the casual, unforeseen, and unanr
ticipated negligence of the railway company, or of those servants of
the company for whose negligence it stands responsible to other of its
servants : by which is here meant such negligence as' the servant, right-
fully acting on the presumption that the master will do his duty, is
not bound to foresee and provide against, unless he knows, or has
good reason to believe, that the source of danger exists. Within this
category come such objects as a switch-stand and target so near the
track that at times it will come in contact with passing trains, es-
pecially where the rules of the company prohibit the erection of such

48 Powers, v. Thayer Lumber Co., edge of the danger, by reason of the

92 Mich. 533; a c. 52 N. W. Rep. known location of the source of it).

937. "Scidmore v. Milwaukee Ac. R.

* Manning v. Chicago Ac. R. Co., Co., 89 Wis. 188; s. c. 61 N. W. Rep.

105 Mich. 260; a c. 2 Det. Leg. N. 765.

109; 63 N. W. Rep. 321. "Pennington v. Detroit &c. R. Co.,

80 Boyd v. Harris, 176 Pa. St 484; 90 Mich. 505; a c. 51 N. W. Rep.

s. c. 35 Atl. Rep. 222; 38 W. N. C. 634.

(Pa.) 397; 4 Am. & Bng. R. Cas. "Dowell v. Burlington Ac. R. Co.,

(N. S.) 472 (brakeman presumed, 62 Iowa 629.

as matter of law, to have knowl- "Ante, § 4618.

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4 Thomp. Neg.] assumption of risk by the servant.

objects within six feet of the track; 65 a footboard of u coal*chute so
near the track that a brakeman, when descending a ladder in the dis-
charge of his duty, came in contact with it and was killed, it being
impracticable for him to use the ladder on the opposite car, which he
was required to do by the rules of the company, because it was at the
rear end of the car; 66 a telegraph-pole so near the track that a brake-
inan was brought into contact with it while climbing the Jadder on the
side of a freight-car, he not being aware of its dangerous situation,
and there being no other like obstructions along the road from which
he might be charged with notice; 57 a tree negligently allowed to stand
so near the track that, by its falling, it may throw an engine off the
track and injure a person employed thereon; 88 a fish-chute situated
so near the main track outside of a yard as to come in contact with the
body of a brakeman upon a moving train, he not being aware of its
situation, and rightfully presuming that the track was free from such
dangers; 59 a cattle-chute similarly situated, and so near the track
that the protrusion of the body ,of a brakeman while moving over a
running freight-train may come in contact with it ; 60 a trestle so near
the track that a brakeman, while descending a moving freight-car
by means of a side-ladder, was scraped off by it; 61 a water-tank which,



"Boss v. Northern Ac. R. Co., 2
N. D. 128; s. c. 49 N. W. Rep. 655.
So held where the brakeman had al-
ways worked at night, and the
switch, not being used, was not pro-
vided with a light, and the injury
occurred at a time when his atten-
tion was momentarily withdrawn
from his own safety by reason of
instructions which he was giving
to a new employ 6: ' Coif v. Chicago
ftc. R. Co., 87 Wia 273; s. c. 58 N.
W. Rep. 408.

"Chicago Ac. R. Co. v. Stevens,
189 111. 226; s. c. 59 N. B. Rep. 577;
affg s. c. 91 111. App. 171.

" Potter v. Detroit ftc. R. Co., 122
Mich. 179; s. c. 81 N. W. Rep. 80;
s. c. rev'd for misconduct of counsel,
82 N. W. Rep. 245. To the same ef-
fect, see Whipple v. New York ftc.
R. Co., 19 R. I. 587; s. c. 35 Atl.
Rep. 305; 5 Am. ft Eng. R. Cas.



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 109 of 165)