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Commentaries on the law of negligence in all relations online

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Mo. App. 389. Rep. 492 (where plaintiff's testi-

4 Missouri ftc. R. Co. v. Durlin mony shows that he was fully aware


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

a hostler's helper employed in switching engines in railroad-yards, we
find that it has been held that, while he assumes the ordinary hazards
incident to his employment, and is bound, in emergencies, to protect
himself against obvious dangers of whatever character, yet he is not
under the duty of inspecting the engines about which he works for the
purpose of discovering hidden and unapprehended sources of danger. 6
Keturning to the case of an engineer who has been killed by a derail-
ment of his engine, in consequence of a negligent defect in the track,
we find that he has been exonerated from the charge of contributory
negligence although he knew that the air-brake was out of order, and
although, if it had been in order, the accident might have been pre-
vented. 7

§4766. Other Bisks Assumed and Not Assumed by Locomotive-
Engineers. — A locomotive-engineer assumes the risk of propelling his
engine over a high trestle, the end of which is only 120 feet from a
switch, as the danger is open and obvious; 8 the risk of danger from a
patent defect in his engine, which, under ordinary circumstances, he
ought to have discovered before starting on the trip, although he dis-
covered it afterwards and shortly before the accident in which he was
injured ; 9 the risk attendant upon going out on the running-board of
an old and hard-running engine while it is in motion — one that is

of the defective condition of a loco-
motive, and voluntarily assumed the
risk, a judgment of nonsuit was

•Atchison &c. R. Co. v. Mulligan,
67 Fed. Rep. 569; s. c. 14 C. C. A.

T Flynn v. Kansas City &c. R. Co.,
78 Mo. 195; s. c. 47 Am. Rep. 99.
On the other hand, in a jurisdiction
where risks are put upon employes
with severity, we find a holding to
the effect that an experienced engi-
neer, familiar with the rules and
regulations of the company and
with the signals adopted for his
protection, and who knows that the
air-brake under his control is or-
dinarily sufficient to stop the train,
and that if that fails the con-
ductor's valve is usually sufficient
for the purpose, assumes the risk
of an unexpected, unusual, and un-
explained failure of the air-brake
to work: Whalen v. Michigan &c. R.
Co., 114 Mich. 512; s. c. 4 Det. Leg.
N. 653; 72 N. W. Rep. 323. See
also, Illinois &c. R. Co-, v. Neer, 26
111. App. 356. In another jurisdic-


tion, the pendulum swings backward
as far in the opposite direction, the
court holding that where a railway
employ^ undertakes to run a de-
fective engine to the machine-shop
for repairs, the rule of law relating
to his negligence, knowledge of the
defect arid acceptance of the risk
of the employment, is the same rule
which applies in other cases of the
use of defective machinery; that it
is the duty of the company to fur-
nish safe machinery in the perform-
ance of all classes of duties which
employe's are called upon to per-
form; and that the company is un-
der this duty with respect to the re-
moval of a disabled engine into the
shop for repairs: Houston Ac. R.
Co. v. O'Hare, 64 Tex. 600; but this
is contrary to the principles already
expounded: Ante, §§ 4616, 4617.

•Louisville Ac. R. Co. v. Stutts,
105 Ala.. 368; s. c. 17 South. Rep.

•Fordyce v. Edwards, 65 Ark. 98;
s. c. 11 Am. ft Eng. R. Cas. (N. S.)
521; 44 S. W. Rep. 1034.

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nearly worn out, and hence liable to jar and sway when in rapid
motion. 10 He does not assume the risk nor incur the imputation of
contributory negligence, as matter of law, from the fact of not having
his train under control at a point where the rules of the company
require that he shall have it under control, when he repeatedly signals
the brakemen to apply the brakes and they do not respond ; n nor from
the fact of running his train into a switch, it being an express-train
not scheduled to stop at the station where the switch is, and running
at the rate of forty miles an hour, where the switch is unnecessarily
placed behind a water-tank, so that the red light showing the switch
to be misplaced is not visible until the train is only sixty feet away,
notwithstanding a rule requiring engineers to have their trains under
control when approaching switches. 1 *

§ 4767. Bisk of Danger from Engine or Train being Improperly
Manned. — The principles determining the question of the assump-
tion of risk in this class of cases are not difficult of application. If
a railway employ^ knows that the train is improperly manned, or if
he knows of a prevailing custom to man it improperly in a given par-
ticular, and nevertheless continues in the service without complaint,
he accepts the risk of injury from this source, — as where he knows
of a prevailing custom of the engineers in the employ of the com-
pany to leave their firemen in charge of their engines when switching
or other similar work is to be done. 18 The same conclusion was
reached where an experienced fireman was injured in a wreck alleged
to have been caused by the negligence of the company in sending out
the train without a conductor; since the plaintiff, by voluntarily going
out with the train, knowing that it had no conductor, accepted the
risk of injury from this source. 14 Nor did the promise of the company
to supply the fireman upon a switching-engine relieve the switchman,

10 Southern Pac. Co. v. Johnson, 69 " Louisville Ac. R. Co. v. Kelly,

Fed. Rep. 559; 8. c. 44 U. S. App. 63 Fed. Rep. 407; s. c. 11 C. C. A.

1; 16 C. C. A. 317. For other risks 260 (the conclusion being that the

assumed by locomotive-engineers, injured brakeman could recover

see Train v. Old Colony R. Co., 161 from the company for an injury

Mass. 353; Texas Ac. R. Co. v. Min- caused by the fireman left in charge

nick, 61 Fed. Rep. 635; Manson v. of it, only when the management

Eddy, 3 Tex. Civ. App. 148; Louis- was below what ought to be re-

ville Ac. R. Co. v. Stutts, 105 Ala. quired of a fireman, or where his

368; Knapp v. Sioux City Ac. R. Co., unfitness was known, or should

71 Iowa 41. have been known, to the master me-

u Louisville Ac. R. Co. v. Mothers- chanic or other like representative

hed, 121 Ala. 650; s. c. 26 South, of the company).

Rep. 10. "Pointon v. St Louis R. Co., 90

"Young v. Syracuse Ac. R. Co., 111. App. 623.
61 N. Y. Supp. 202; s. c. 45 App.
Div. (N. Y.) 296.


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

at whose request the promise had been made, from the imputation of
accepting the risk of the engine being operated without a fireman,
where the request was not made from a motive of safety, but for the
purpose of avoiding delay in moving trains, — the view being that this
was not such a promise to repair a defect or to remove a danger in the
service as would prevent the continuance by the switchman in the
service from operating to defeat his right to recover damages for
injuries sustained in consequence of it. 15 On the other hand, a rail-
road brakeman does not, by failing to object to the substitution of
the fireman for the engineer upon the locomotive, in running a short
distance from a place where the passenger-coach and baggage-car are
left to the end of the trip, consent to such fireman's acting 'in that
capacity, so as to assume additional haaards on account of it. 16 An-
other court has held that knowledge on the part of a switchman that
a switch-engine is operated without a fireman, does not of itself, as
matter of law, preclude a recovery, for injuries resulting from the
failure of the engineer to see signals because his attention was diverted
by the performance of a duty which ordinarily would be performed by
the fireman, in the absence of evidence that the operation of the engine
in the yard without a fireman was so obviously dangerous that a man
of ordinary care and reasonable prudence would refuse to act as a
switchman. 17

§4768. Bisk of Working with Insufficient Help.— Recurring to
what has been said upon this subject in its general aspects, 18 and
remembering' that this is obviously a case for the application of the
principle, already considered, 19 that, in order to put upon the employ^
the assumption of the risk, it is not only necessary that he should
know the defect or source of the danger, but it is also necessary that
he should have knowledge or experience sufficient to enable him to
appreciate the risk of injury proceeding from such source or defect, —
we must conclude that the broad statement found in the decision of a
Federal Court of Appeals, that the failure of an employer to furnish
a sufficient number of employes to assist in certain work is a patent
defect in the appliances for performing such work, the risk of which
is assumed by an employ^ engaged therein, 20 cannot be affirmed as a
general principle. For example, a common laborer might be sent

18 International Ac. R. Co. v. Tur- 14 Utah 383; s. c. 46 Pac. Rep. 374;

ner, 3 Tex. Civ. App. 487; s. c. 23 S. 5 Am. ft Eng. R. Cas. (N. S.) 669.
W. Rep. 146. "Ante, §§ 3758, 3807, 4175. See

"Nicolaus v. Chicago &c. R. Co., also, post, §§ 4829, 4865, 4868.
90 Iowa 85; s. c. 57 N. W. Rep. 694. » Ante, § 4652.

"Wright v. Southern ftc. R. Co., "Texas ftc. R. Co. v. Rogers, 57

Fed. Rep. 378; 8. c. 6 C. C. A. 403.


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with a dozen men to repair a bridge or a trestle, and he might know
the exact number of men in the gang, and yet his experience might
be so limited that he would be utterly unable to determine whether the
number sent was sufficient to do the work in safety ; whereas the mas-
ter mechanic, or other vice-principal of the railroad company, would
be properly chargeable with the possession of such skill and knowl-
edge ; so that, to put upon the common laborer the assumption of the
risk of the work proceeding with insufficient help would be sheer
injustice. But if the servant is one of a grade who may
required to have knowledge of the number of men required for the
safe performance of a given piece of work, then, if he proceeds to do
the work with insufficient help, he may fairly be held to assume the
risk incident thereto. 21 The books exhibit a considerable tendency to
put upon servants an assumption of the risk of injury from this source,
as will be seen from the cases cited in the margin, 22 especially in the
case of experienced employes, who may be presumed to have equal
knowledge with the vice-principal of the company on the subject. 28 *
But, under some conditions of fact, the courts have held that the risk
of working with insufficient help was not assumed by the servant re-
ceiving an injury from that source, — as where the danger was not so
glaring that an ordinarily prudent man would not have engaged in
the work; 24 or where a railway train-crew was so depleted that they
were on duty nineteen consecutive hours with no time allowed for
meals, and the schedule under which the train was run rendered it
necessary for some of them to absent themselves to get their meals ; 25

J1 As where a section-foreman was App.), 27 S. W. Rep. 295 (no off.

sent to load heavy rails on a hand- rep.); Slavens v. Northern Pac. R.

car with only one assistant, of Co., 97 Fed. Rep. 255; s. c. 38 C. C.

which he had complained to the su- A. 151; Long v. Coronado R. Co., 96

perintendent, but only to receive the Cal. 268; s. c. 31 Pac. Rep. 170;

reply that he could not have another Membery v. Great Western R. Co.,

man to help him, and that if he *14 App. Cas. 179; s. c. 58 L. J. Q. B.

could not do the work they would 663; 61 L. T. 566; 38 Week. Rep.

get another man in his place, and 145; 54 J. P. 244; 7 Rail, ft Corp.

was ruptured while lifting one of L. J. 5fr; Way v. Chicago &c. R. Co.,

the rails: Atchison Ac. R. Co. v. 76 Iowa 393; s. c. 41 N. W. Rep. 51

Schroeder, 47 Kan. 315; s. c. 27 (where the employe made no com-

Pac. Rep. 965 ; 10 Rail, ft Corp. L. plaint, when the circumstances were

J. 487. such that if he had complained

a Richmond Ac. R. Co. v. Mitchell other employe* who were near by

92 Ga. 77; s. c. 18 S. B. Rep. 290; might have been called).

Bryan v. Southern R. Co., 128 N. C. ** McMullen v. Missouri R. Co., 60

387; s. c. 38 S. B. Rep. 914 (four Mo. App. 231; s. c 1 Mo. App. Repr.

men attempting to load a heavy 230 (Missouri doctrine with respect

timber on a car; one of them ' to contributory negligence of serv-

thought they would be able to load ants).

it, but was injured — assumed the * Pennsylvania Co. v. McCaffery,

risk). 139 Ind. 430; s. c. 38 N. B. Rep. 67.

"Eddy v. Rogers (Tex. Civ.


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

or where the injured employ^ complained of the insufficient help, and
received an express promise by the representative of his employer to
"put him in a safer place in a few days"; 26 and in the case noted in
the margin. 27

§4769. Bisk of Injury from Switches being Negligently Left
Open. — This species of risk is properly ascribed to the casual negli-
gence of the master which it is not the duty of railway employes to
anticipate and foresee, in the absence of circumstances putting them
specially upon inquiry ; but they may rightfully assume that the com-
pany has acted carefully and done its duty in this respect, under a
principle already considered, 28 except in those jurisdictions where this
species of negligence is ascribed to fellow servants, the risk of whose
negligence other servants assume. It is therefore deemed a special
negligence of the master which trainmen are not required to anticipate
and the risk of injury from which they do not assume. 29 It has been
held that a fireman on a passenger-train does not, as matter of law,
accept the risk of a switch being left open at night at a place where
there is no switch-light to indicate whether the switch is open or
closed. 80 It has been held, in a case where a brakeman was killed by
reason of the train running into an open switch, that the manner of
the accident was sufficient to justify a finding of negligence on the
part of the company, on the principle res ipsa loquitur, in the absence
of evidence on its part showing that it had exercised proper care to
keep the switch and track at that place in a safe condition. 81

"Illinois Ac. R. Co. v. Weiland, s. c. 34 S. W. Rep. 95; Washington

67 111. App. 332; s. c. 2 Chic. L. J. v. Missouri Ac. R. Co., 90 Tex. 314;

Wkly. 9; s. c. aff'd, 179 111. 609; 54 s. c. 38 S. W. Rep. 764; Gulf Ac. R.

N. E. Rep. 300. Co. v. Wells, 81 Tex. 685; s. c. 17 S.

"Young v. Syracuse Ac. R. Co., W. Rep. 511]. Circumstances and

166 N. Y. 227; s. c. 59 N. E. Rep. location of switch under which a

828; aff'g s. c. 61 N. Y. St. Rep. 202.- finding by the -Jury, in substance,

"Ante, §§ 4618, 4654. that the company owed the brake-

" International Ac. R. Co. v. man who was killed the duty of in-

Johnson, 23 Tex. Civ. App. 160; s. specting the switch, at least once

c. 55 S. W. Rep. 772; Seldomridge every six years, and that it was

v. Chesapeake Ac. R. Co., 46 W. Va. guilty of negligence in failing to do

569; Consolidated Ac. Co. v. Peter- so, would not be set aside on ap-

son, 8 Kan. App. 316; Allen v. Bos- peal: International Ac. R. Co. v.

ton Ac. R. Co., 69 N. H. 271; Young Johnson, 23 Tex. Civ. App. 160; s.

v. Boston Ac. R. Co., 69 N. H. 356. c. 55 S. W. Rep. 772. Evidence hav-

30 Chicago Ac. R. Co. v. House, 172 ing been introduced that the track

111. 601; s. c. 50 N. E. Rep. 151; aff'g at that point was in a defective con-

s. c. 71 111. App. 147. Compare Illi- dition, the burden was on the com-

nois Cent. R. Co. v. Swisher, 61 111. pany to show that the defects had

App. 611. no effect in overturning the car:

" International Ac. R. Co. v. John- International Ac. R. Co. v. Johnson,

son, 23 Tex. Civ. App. 160; s. c. 55 supra. For a case where a loco-

S. W. Rep. 772 [citing McCray v. motive-fireman was held not to have

Galveston Ac. R. Co., 89 Tex. 168; assumed the risk of running into


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§ 4770. Bisk of Danger from Absent or Defective Hand-Holds upon
Cars. — Whether a railway trainman, whose duty requires him to
ascend or descend the cars on the outside of them, assumes the risk of
injury from the absence or deficiency of what are usually called hand-
holds, though sometimes called hand-rails, turns chiefly on the in-
quiry whether he knew, or had had ample opportunity to know, of the
deficiency or danger of the car in this respect. Where this question
is answered in the affirmative, he is deemed to assume the risk of
injury from this source, unless he has notified his employer of it, and
has received his promise to repair, on the faith of which he has re-
mained in the service ; and he is also deemed to assume the risk if he
has received injury because he has so remained an unreasonable time
after such promise has been given, under a principle already consid-
ered ; 82 or where he acquires knowledge of the source of danger, but
nevertheless continues to use the car without objection, although the
company has been negligent in repair it. 88

§4771. Bisk of Injury while Biding on Hand-Cars: Defective
Hand-Cars. — Kailway servants who ride up and down the track upon
hand-cars, assume the risk of coming into collision with trains which
they know may come along at that time; 84 or with fast trains which
they know to be due; 85 or with "wild trains" which they know are
liable to appear, when it is their duty to look out for them and
to protect themselves from them ; 86 or with freight-trains left stand-
ing on the track, where the injured employ6 wrongfully, and for his

■ an open switch at a station, where S.) 339; 53 Am. ft Eng. R. Cas. 372;

the evidence was conflicting as to 25 Atl. Rep. 498 (brakeman, by con-

whether the train was under con- tinuing in service upon a frelght-

trol, and he had nothing to do with train, takes the risk of the want of a

the speed of the train, — see Mis- ' platform or guard-railing *at the end

sour! &c. R. Co. v. Follin, 29 Tex. of a box-car such as is in common

Civ. App. 512; s. c. 68 S. W. Rep., use on railroads, but which is used

810. » as a caboose) ; Crawford v. New

••Chicago Ac. R. Co. v. Travis, 44 York &c. R. Co., 23 Ohio C. C. 207

111. App. 466; Wabash Ac. R. Co. v. (conductor assumed risk of injury

Kastner, 80 111. App. 572. from a caboose, remodelled from a

83 Shackelton v. Manistee &c. R. freight-car, which had no platforms,

Co., 107 Mich. 16; s. c. 2 Det. Leg., hand-holds, or other safeguards at

N. 557; 64 N. W. Rep. 728; Carey the ends, where he had used it for

v. Boston &c. R. Co., 158 Mass. 228; more than a year without com-

s. c. 33 N. E. Rep. 512 (circum- plaint).

stances under which a railway em- "McGrath v. New York &c. R.

ploy6 assumed the danger of his Co., 14 R. I. 357.

clothing being caught upon a "Wright v. Southern R. Co., 80

threaded screw projecting from the Fed. Rep. 260.

handle of a car beyond the end of "Sullivan v. Fitchburg R. Co.,

the nut); Davis v. Baltimore &c. 161 Mass. 125; s. c. 36 N. E. Rep.

R. Co., 152 Pa. St. 314; s. c. 31 W. 751.
N. C. (Pa.) 300; 23 Pitts. L. J. (N.


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

own pleasure, delays returning with the hand-car until it is too dark
to see such standing cars; 87 or the risk of injury from the hand-car
jumping the track, caused by the fact of its being too light, of which
fact the injured employ6 knew, or ought to have known in the exer-
cise of ordinary care and judgment. 88

§4772. Bisk of Injury from Defects in the Construction and
Operation of Elevated Railways. — Employes' of companies operating
elevated railroads have been held to assume the risk of dangers of the
service under the following circumstances: — Where a plank broke,
injuring an employ^ while ^engaged in replacing a derailed car, who
had worked about the premises for five years and was perfectly famil-
iar with them; 88 and where an employ^ of an elevated-railway com-
pany, who had been employed for more than three weeks in a yard
which was elevated some distance above the street grade, and who had
actual knowledge that it was not in a completed state, but that carpen-
ters were constantly working about it covering it with planking, was
injured by falling through one of the uncovered spaces between the
tracks ; 40 where an employ^ fell from a narrow, unguarded walk along-
side the track, who had been in the employ of the company for ten
years, during which time he had been lampman, brakeman and con-

"Sliney v. Duluth &c. R. Co., 46
Minn. 384; s. c. 49 N. W. Rep. 187.

"Gulf &c. R. Co. v. Williams, 72
Tex. 159; s. c. 12 S. W. Rep. 172.
Or, knowing that the handle of the
lever of a hand-car is worm-eaten
and defective, assumes the risk of
using it while going to a distant
place after the close of his day's
work: McGhee v. Bell, 19 Ky. L.
Rep. 267 r s. c. 39 S. W. Rep. 823
(no off. rep.) ; rev'g on rehear-
ing s. c. 38 S. W. Rep. 702. Or the
danger of coming into collision with
a switching-engine,, in a switch-
yard filled with smoke from adja-
cent coke-ovens, when he did not
stop before entering the smoke and
send the flagman forward to recon-
noitre: Woodward Iron Co. v. Hern-
don, 130 Ala. 364; s. c. 30 South.
Rep. 370. Evidence in the same
case not sufficient to warrant the
giving of a peremptory instruction
for the defendant: Woodward Iron
Co. v. Herndon, supra. That the
fright with which a fellow servant
was seized, while attempting to lift
a hand-car from a track in order to
avoid a fast train which had sud-


denly appeared around the curve,
was not a risk assumed by an em-
ploye injured in the operation,
since he could not have anticipated
that his co-employ6 would become
so frightened that he would let go
his hold of the car,— see Interna-
tional &c. R. Co. v. Newburn, 94
Tex. 310; s. c. 60 S. W. Rep. 429;
aff'g s. c. (Tex. Civ. App.), 58 S. W.
Rep. 542. The brake of a hand-car
was defective, and a section-hand
learning of the fact had himself
changed to another car. While oper-
ating the other car, he was run into
by the car having a defective brake
while it was being operated by
other employes of the company. It
was held that the former employ^
did not assume the risk of being in-
jured by the car having the defect-
ive brake: International &c. R. Co.
v. Williams (Tex. Civ. App.), 34 S.
W. Rep. 161 (no off. rep.).

"Davey v. Hall Ac. Co., 122 Mich.
206; s. c. 80 N. W. Rep. 1082.

"Kennedy v. Manhattan R. Co.,
145 N. Y. 288; s. c. 64 N. Y. St Rep.
705; 39 N. E. Rep. 956.

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ductor, and the evidence showed that he was familiar with the con-
struction of the walks and had walked along unguarded ones before,
including the one from which he fell. 41

§4773. Bisks Assumed in Street-Railway Operation. 3 — A con-
ductor on an open street-car assumes, as part of the risk of the em-
ployment, an enhancement of the danger from the presence of a
passenger on the running-board along the side of the car; and it
makes no difference that the passenger is a superintendent of the
railroad company, superintending at the time, to the extent of having
an eye on the way the car is managed, and that there are seats in the
car, so that it is not necessary for him to be on the running-board. 42

§4774. Bisks, of Injury from Alpent or Defective Air-Brakes. —

Brakemen assume the risk of injuries in consequence off being obliged
to move back and forth upon the tops of cars, in order to perform their
duties by means of hand-brakes, in consequence of the cars not being
equipped with air-brakes. 48 Where the engineer detailed for a trip
was assigned to an engine which on examination seemed to be
equipped with an efficient air-brake, but which, after starting on the
trip, proved to be worthless, which, however, could not be repaired
until the engine could be brought back to the starting-point, — the
engineer did not, by continuing at his post in order to make the return
trip, assume the risk of an accident due to the defectiveness of the air-

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 111 of 165)