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Commentaries on the law of negligence in all relations online

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N. Y. 628 (defective rung used for train on one track will not place

climbing a freight-car). himself in danger of being struck

123 Brown v. Chicago Ac. R. Co., by a train on another track seven

69 Iowa 161 (nor can employ^ feet from the former: Nye v. Penn-

contend that signals should be sylvania R. Co., 178 Pa. St 134;

placed at snow-banks, or notice s. c. 39 W. N. C. (Pa.) 209; 35 Atl.

given by bell or whistle of the ap- Rep. 627. Circumstances under

proach of a train to a snow-bank); which the division superintendent

Bryant v. Burlington &c. R. Co., 66 of a railway company does not owe

Iowa 305; s. c. 55 Am. Rep. 275; to one gang of men employed to

Derr v. Lehigh Valley R. Co., 158 remove a train blocked in the snow.

Pa. St. 365; s. c. 33 W. N. C. (Pa.) the duty of giving notice of such

295; 27 Atl. Rep. 1002 (engineer fact to the engineer of a train going

who sets out to clear snow from the over the same road, but on another

tracks, assumes the risk incident to track than that which the blocked

the employment,' although he does train is on: Nye v. Pennsylvania

not know the exact location and R. Co., supra.
size of every drift which must be


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carry snow-shovellers to a certain station beyond which the road is
blockaded, does not assume the risk of a snow-slide between the sta-
tions on the trip he is ordered to run. 125

§4791. Bisk of Injury from Cattle Getting upon the Track. —

On this subject we find some irreconcilable decisions. On the one
hand, if the cattle get upon the track through a failure on the part
of the railway company to keep its fences in repair, and if the non-
repair of its ferfces is a permanent condition, and not the result of
transient, unforeseen, and consequently unanticipated negligence of
the company, — then the employe is deemed to assume the risk of in-
jury from that source of danger. 126 And this is so, although the
failure to fence the track is a violation of the statute law. 127 Directly
opposed to this, we learn from another court that a railroad company
is liable to a brakeman for its failure to maintain fences as % required
by statute, in consequence of which an animal gets upon the track,
causing a derailment of the train and injury to the brakeman. 128 On
clear grounds, where a railway trainman is killed or injured from
defects in the track or in the roadbed existing through the negligence
of the company, it will be liable, although the primary cause of the •
derailment is the running into an animal on the track. 129

§ 4792. Bisk of Injury through Defects in Bailroad-Traoks outside
of Yard and Switch Limits. — We are now dealing with the question

138 Fisher v. Oregon ftc. R. Go., 22 out any fault on the part of the

Or. 533; s. c. 16 L. R. A. 519; 30 company, where its tracks and

Pac. Rep. 425; 12 Rail. ft Corp. L. bridges are examined at reasonably

J. 139. frequent intervals, — was held in

"• Houston ftc. R. Go. v. Quill Manson y. Eddy, 3 Tex. Civ. App.

(Tex. Civ. App.), 55 S. W. Rep. 148; s. c. 22 S. W. Rep. 66.

1126; s. c. aff'd, sub nom. Quill v. "* Atchison ftc. R. Co. v. Reesman,

Houston ftc. R. Co., 93 Tex. 616; 60 Fed. Rep. 370; s. c. 23 L. R. A.

s. c. 57 S. W. Rep. 948; Fleming v. 768. That a railway engineer does

St Paul ftc. R. Co., 27 Minn. Ill; not assume the risk of the derail-

Sweeney v. Central Pac. R. Co., 57 ing of his engine by a collision with

Cal. 15; Dickson v. Omaha. ftc. R. a cow which gets upon the track

Co., 124 Mo. 140; s. c. 25 L. R. A. at a place where there is no fence,

320, and note. where he does not know that the

187 Fleming v. St. Paul ftc. R. Co., track is not fenced, — was held in

27 Minn. Ill; Sweeney v. Central Terre Haute ftc. R. Co. v. Williams,

Pac. R. Co., 57 Cal. 15; Newsom v. 172 111. 379; s. c. 50 N. E. Rep. 116;

Norfolk ftc. R. Co., 81 Fed. Rep. aff'g s. c. 69 111. App. 392.

133; s. c. 35 L. R. A. 135; 42 U. S. m Texas ftc. R. Co. v. McClane,

App. 282; 2 Va. L. Reg. 882; 23 24 Tex. Civ. App. 321; s. c. 62 S. W.

C. C. A. 669 (statute not intended Rep. 565; New York ftc. R. Co. v.

for protection of railroad * em- Green, 90 Tex. 257; s. c. 38 S. W.

ploySs). That a railway-engineer Rep. 31; aff'g on this point s. c.

assumes the risk of a derailment of 36 S. W. Rep. 812. Compare Vol. I,

his engine by a cow which becomes §§ 48, et seq., 68.
fastened in a railroad-bridge with-

VOL. 4 THOMP. NBG. — 52 817

' Digitized by LjOOQ LC

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

indicated in the caption, in its application to trainmen who are em-
ployed in conducting trains along the main line and outside of the
yard and switch limits. The first obvious suggestion of the doctrines
already considered is that such trainmen are not chargeable with
notice of defects or dangers in the railway-track, or of dangers pro-
ceeding from objects adjacent thereto, where such defects or dangers
are not obvious to passing trainmen, 130 but are discoverable only by
such an inspection and examination as the superintendents and track-
repairers of the company are employed to make and are presumed to
make. 131 They do, indeed, assume the risks of defects in the road-
bed of which they have actual knowledge, or of which they might
acquire knowledge by the exercise of such reasonable care for their
own safety as their situation and the nature of their service admit
of. 132 In the case of a finished track open for public travel, they are
obviously not required to go over the track — let ui3 say, upon a hand-
car — and make a minute inspection of it in order to ascertain whether
it will be safe for them to proceed over it upon a train ; but they are
entitled to assume, in the absence of notice or knowledge to the con-
trary, 133 that the railway company has made the track reasonably
safe; and if they are injured in consequence of its not having been
made reasonably safe, without special fault on their own part, they
may recover damages from the company. 134 This does not mean that
they are entitled to neglect the admonitions of their senses, their
knowledge, or their experience ; but it justifies the conclusion that, in
order to put upon them the assumption of such a risk, the defect or
danger must have been so obvious and threatening to a servant engaged

130 Davidson v. Southern Pac. R. track); Clune v. Ristine, 94 Fed.

Co., 44 Fed. Rep. 476. Rep. 745; 8. c. 6 Am. Neg.

m Gulf Ac. R. Co. v. Hohl (Tex. Rep. 416; 36 C. C. A. 450; 2 Denv.

Civ. App.), 29 S. W. Rep. 1131 (no Leg. Adv. 593; 15 Am. ft Eng.

olff. rep.). R. Cas. (N. S.) 761 (duty of com-

182 Pennsylvania Co. v. Ebaugh, pany to protect the track from

152 Ind. 531; s. c. 1 Repr. (Ind.) the falling of loose overhanging

1009; 14 Am. ft Eng. R. Cas. (N. rocks inbedded in the slopes of

S.) 701; 53 N. E. Rep. 763. cuts); Union Pac. R. Co. v. O'Brien,

1M Clapp v. Minneapolis &c. R. Co., 161 U. S. 451; s. c. 40 L. ed. 766;

36 Minn. 6; s. c. 32 N. W. Rep. 18. 16 Sup. Ct. Rep. 618 (not bound

,M Gulf &c. R. Co. v. Warner, 22 to know the danger lurking in a

Tex. Civ. App. 167; s. c. 54 S. W. narrow seam in a mountainside,

Rep. 1064; Peirce v. Delaney, 87 rendering a fall of rocks upon

Fed. Rep. 133; s. c. 59 U. S. App. the track probable); North Chicago

283 (inexperienced and uninformed St. R. Co. v. Dudgeon, 184 111. 477:

brakeman upon a freight-train, nan- s. c. 56 N. E. Rep. 796 (street-rail-

dling the output of a coal mine, way conductor not held, as matter

does not assume the risk of the lack of law, to have assumed the risk

of the necessary appliances to pre- arising from the presence of a pile

vent the escape of heavily-loaded of stones, he not knowing of their

coal-cars from a coal-track, having existence until he fell over them

a steep grade, upon the main while attempting to board a car).


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in the operation of trains upon a track, that a reasonably prudent
man> in his situation, would have refused to proceed, or would in
some manner, such as the circumstances afforded, have avoided it. 185
Many decisions roundly support the doctrine that trainmen do not
assume the risk of being injured thrpugh the negligence of the com-
pany in failing to keep its track in a reasonable condition of repair. 186

§ 4793. Circumstances under which Such Bisks are Assumed* — If
a railroad employ^ knows that the general condition of the track is
defective in certain particulars, but nevertheless continues in the
employment, he assumes the risk of injury from all defects of that
nature, whether specially known to him or not. 187 This is especially

"■ Chicago Ac. R. Co. v. Price, 97
Fed. Rep. 423; s. c. 38 C. C. A. 239;
Graham v. Chapman, 58 Hun (N.
Y.) 602; s. c. 33 N. Y. St. Rep. 349;
11 N. Y. Supp. 318 (general knowl-
edge that the track is in bad condi-
tion will not put upon a trainman
an acceptance of the risk of a de-
railment); Pidgeon v. Long Island
R. Co., 87 Hun (N. Y.) 43; s. C.
67 N. Y. St. Rep. 486; 33 N. Y. Supp.

m Knapp v. Sioux City ftc. R. Co.,
71 Iowa 41; s. c. 32 N. W. Rep. 18;
Evansville Ac. R. Co. v. Maddux,
134 Ind. 571; s. c. 33 N. B. Rep.
345; 34 N. E. Rep. 511; Little
Rock ftc. R. Co. v. Voss (Ark.),
18 S. W. Rep. 172 (no off. rep.);
Union Pac. R. Co. v. O'Brien, 4
U. S. App. 221; s. c. 49 Fed. Rep.
538; Union Pac. R. Co. v. O'Brien,
161 U. S. 451; s. c. 40 L. ed. 766;
16 Sup. Ct. Rep. 618 (engineer does
not assume the risk of danger from
the failure of the railroad company
to construct and maintain its tracks
in a proper condition at the foot of
a mountain). A locomotive-fire-
man did not assume the risk of de-
fects in the railroad-track over
which he was running his train in
the course of his employment, mere-
ly because he knew that a company
other than his employers owned the
track, and owed the duty of keep-
ing it in repair: Story v. Concord
Ac. Co., 7.0 N. H. 364; s. c. 48 Atl.
Rep. 288. It has been held that a
person by accepting service under
a railroad corporation whose road
is in bad condition, does not ac-
cept, as matter of law, the double
risk of injury from insufficient and

bad tracks, and from the careless
and negligent handling of cars over
dangerous places: Wilson v. Louisi-
ana ftc. R. Co., 51 La. An. (pt. 2)
1133; s. c. 25 South. Rep. 961; 14
Am. ft Eng. R. Cas. (N. S.) 648.
Assuming that the "fellow-servant
doctrine" is not applicable to the
case above cited, the conclusion of
the court is plain, since the care-
less and negligent handling of ears
over dangerous places would refer
itself to the special negligence of
the master , or to some one for
whose conduct the master is ac-
countable, in which case, as al-
ready seen (ante, § 4618), the risk
is not assumed.

1W Green v. Cross, 79 Tex. 130; s.
c. 15 S. W. Rep. 220. See also,
Texas ftc. R. Co. v. Taylor (Tex.
Civ. App.), 44 S. W. Rep. 892 (no
off. rep.) ; Chicago ftc. R. Co. v. Mas-
sig, 50 111. App. 666 (helper of a
locomotive "hostler" knew of the
bad condition of the planking upon
the track near the round-house for
two years before the accident) ;
Clark v. Missouri ftc. R. Co., 48
Kan. 654; s. c. 29 Pac. Rep. 1138
(railroad employe^ familiar with
the construction of the roadbed
and track, assumes all the risks
arising from the fact that the bal-
last slopes from the middle of the
tracks so that no filling is left un-
der the ends of the ties) ; Atchison
ftc. R. Co. v. Croll, 3 Kan. App. 242;
s. c. 45 Pac. Rep. 112 (injury from
coal being jostled off a passing ten-
der, due to low joints in a good
rock-ballasted track, the conclusion
being that the company was not
negligent). See also, Texas ftc. R.


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

true with respect to an employ^ who is charged with the duty of look-
ing after the reparation of the roadbed, and who knows of its de-
fective condition. 188 Outside of this, the employes below named
have been held to assume the risk of injury from the danger stated
in each case : — A railway-switchman, the risk of injury from worn
rails used in side-tracks, of which he has knowledge; 130 an engineer
and conductor of a construction-train, who knows the manner in which
a trestle is constructed and that there is an unprecedented flood, but
who nevertheless attempts, without compulsion? or necessity, to drive
his train across the bridge; 140 a railway-engineer who knows and un-
derstands the liability of the engines used by the company- to scatter
fire, and who is acquainted with the character and extent of a watch*
kept upon a wooden bridge forming a part of the roadway, the risk of
injuries due to the burning of the bridge by sparks escaping from a
locomotive; 141 a locomotive-engineer who knows that there are no
track-walkers or night-watchmen on a bridge over which he is obliged
to drive his train, the risk of a disaster in consequence of their ab-
sence. 142 ^

§ 4794. Bisks Assumed in Using Uncompleted Tracks, Tracks Un-
dergoing Repairs, etc. — There is an obvious distinction between the
extent of the assumption of the risk by the railway servant in the
case of a track which has been completed and is open for public service
(in which case he may rightfully assume that the company has done
its duty in making it reasonably safe), and in the case of a track
undergoing construction or reparation. In the latter case, the em-
ploys is entitled to expect no more than a degree of care and skill
equal to -that ordinarily employed in railway construction, and he
consequently assumes the risk of injury due to the fact of the track
being unfinished, where this degree of care and skill has been used. 148

Co. v. Dillard, 70 Tex. 62; a. c. 8 14 ° Columbus &c. R. Co. v. Bridges,

S. W. Rep. 113 (unless it is made 86 Ala. 448; s. c. 5 South. Rep. 864.

to appear that the company has ia Texas &c. R. Co. v. Minnick, 61

been guilty of negligence such as Fed. Rep. 635; s. c. 23 U. S. App.

would increase the danger which 310.

the employe* assumes); Batterson "* Texas Ac. R. Co. v. Minnick, 57

v. Chicago &c. R. Co., 53 Mich. 125 Fed. Rep. 362; s. c. 6 C. C. A. 387.

(railroad company not liable for an "» Colorado &c. R. Co. v. Naylon,

injury sustained by a brakeman 17 Colo. 501; s. c. 30 Pac. Rep. 249;

from a side-track being so poorly Colorado &c. R. Co. v. O'Brien, 16

ballasted as to afford an insecure Colo. 219; s. c. 10 Rail. & Corp. L.

footing). J. 351; 27 Pac. Rep. 701;. 48 Am. &

1,8 St. Louis &c. R. Co. v. Denny, Eng. Corp. Cas. 235 (assumes the

5 Tex. Civ. App. 359; s. c. 24 S. W. risk of injury while being carried
Rep. 317. to and from his work over a newly-

"• Michigan &c. R. Co. v. Austin, constructed road, reasonably safe
40 Mich. 247. for such use but not finished for

public travel).


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But he is entitled to expect the exercise of that degree of care; and
consequently he assumes only the risks ordinarily incident to travel over
the new track ; and, although he may himself be a civil engineer and
have been engaged in laying it, he does not, for example, assume the
risk of injury from the negligence of the company in driving a train
over the track at an undue rate of speed, or in failing to repair defects
made in the track by storms, where the track has been completed for
several weeks and is under the charge of the roadmaster. 144 It has
been held that & brakeman on a construction-train running over a
road not yet open for traffic, assumes the risk of an accident from the
general unfinished and incomplete condition of the road, where such
matters come directly within his observation, or the danger is equally
open to the observation of the master and the brakeman. 145 If it is
the duty of the injured employ^ to keep the road in proper repair, or
to assist in doing so, this fact charges him with notice of its condition
and puts upon him an assumption of the risk of injury in consequence
of his riding to and fro over it. 146

§ 4795. Bisks Assumed by Railway and Strcet-Eailway Conduct-
ors. — Conductors of railway-trains and of street-railway cars have
been held to assume the risk of being injured under the following,
circumstances: — Where, under the rule of a railway company, no
duty was imposed upon the conductor to examine or to repair any ap-
pliances connected with the operation of the train, but the conductor
nevertheless, without notifying the engineer, went between the engine
and the cars to examine the air-brake, there being no pressing emer-
gency requiring him to do so, and thereby sustained injuries in con-
sequence of the moving of the train; 147 where the conductor of an
electric car stood upon the bumper of a moving car in attempting to

144 Meloy v. Chicago ftc. R. Co., 77 prevent accidents which the exigen-
Iowa 743; 8. c. 4 L. R. A. 287; 42 cies of the case would suggest to
N. W. Rep. 563. prudent and cautious men experi-

145 Baltimore Ac. R. Co. v. Welsh, enced in such work, although a
17 Ind. App. 505; , s. c. 47 N. E. particular bridge which causes in-
Rep. 182. jury to him is not known to be out

146 White v. Kennon, 83 Ga. 343; of repair and he is not employed
8. c. 9 S. E. Rep. 1082; 39 Am. ft to assist in repairing it); Illinois
Eng. R. Cas. 330; Evansville ftc. ftc. R. Co. v. Quirk, 51 111. App. 607
R. Co. v. Henderson, 134 Ind. 636; (death of engineer due to recent
s. c. 33 N. E. Rep. 1021; Evansville ballasting, which was necessary to
ftc. R. Co.. v. Henderson, 142 Ind. make a first-class road, the en-
596; s. c. 42 N. E. Rep. 216; Brick gineer being aware of the extra
v. Rochester ftc. R. Co., 98 N. Y. danger, and where company was
211; Carlson v. Oregon ftc. R. Co., not guilty of negligence in perform-
21 Or. 450; 8. c. 28 Pac. Rep. 497 ing the work).

(except as against neglect of the 14T Central ftc. R. Co. v. McWhor-
railroad company to take that due ter, 115 Ga. 476; s. c. 42 S. E. Rep.
care to ascertain its condition and 82.


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

disconnect the trolley from the wire while passing under a low bridge
and to connect it again after its passage under the bridge, knowing
that the track at that point was uneven, "and was thrown from his
perch by a severe jolt of the car ; 148 where the conductor of a freight-
train, in violation of a rule of the company, voluntarily left the
caboose while the train was in motion, and stepped outside upon the
platform of another car to observe the station-lights, which he might
have seen from the caboose, and in consequence of so doing got
killed ; 149 where a street-railway conductor, whose duty it was to assist
the motorman in' turning the car on a turntable at the end of the
line, overstrained himself in attempting to do so, in consequence of
the turntable getting out of repair so that the rails scraped against
the side of the pit, impeding its motion, of which fact the conductor
had knowledge; 180 and in another case specially noted in the mar-
gin. 151 On the other hand, and somewhat at variance with the case
just referred to in the foot-note, it has been held that a conductor on
,a trolley-car does not assume the risk of being struck by a passing
car, while properly standing on the running-board of his car, collect-
ing fares, where the tracks are unnecessarily constructed too near
together, for a short distance, he not knowing of the danger and it not
being obvious to him. 152

"•McCauley v. Springfield St R.
Co., 169 Mass. 301; s. c. 47 N. E.
Rep. 1006.

"• Crawford v. New York &c. R.
Co., 23 Ohio C. C. 207.

110 Roberts v. Indianapolis St R.
Co., 158 Ind. 634; s. c. 64 N. E. Rep.
217. See post, § 4834.

MX The plaintiff, who had been en-
gaged on other roads as a con-
ductor, and who, at the time of the
accident 'was engaged in learning
the duties of conductor on the de-
fendant's street-car, while standing
on the running-board of a car mov-
ing along the track on the side of
a road, was struck by a trolley-post
and Injured. He was an experi-
enced man, and familiar with the
duties of a conductor. He knew it
was common to have the tracks on
one side of the street, and knew
that in such cases there would be
trolley-posts. He was sent out on
this part of the road to learn the
conditions of Its operation, and had
made two trips before the accident
He failed to observe whether the
car was in the center or on the side
of the road, and paid no attention


to trolley-posts, and when stepping
down on the running-board to per-
form certain duties as a conductor,
he did not look to see if there were
obstructions. The running-board
on the opposite side of the car could
have been used with safety. The
defendant's tracks had been in the
same position for several years, and
the condition of the track and trol-
ley-posts was not unusual. It was
held that plaintiff assumed the risk,
the danger being obvious: Ladd v.
Brockton St. R. Co., 180 Mass. 454;
s. c. 62 N. E. Rep. 730.

""True v. Niagara Gorge R. Co.,
70 App. Div. (N. Y.) 383; s. c. 75
N. Y. Supp. 216. State of evi-
dence where a freight-car was
backed down a grade at night and
was derailed and the conductor
killed in consequence of the exces-
sive speed, — where the conclusion
of the court was that the evidence
did not show, as matter of law, that
the conductor assumed the risk of
injury from the excessive speed:
International &c. R. Co. v. Vinson,
28 Tex. Civ. App. 247; 8. C 66 S.
W. Rep. 800.

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§4796. Various Other Bisks Assumed by Railway Employes. —

Keferring to various other decisions, we find that it has been held
that a section-hand familiar with the fact that trains are run at a
high rate of speed at a certain place, assumes the risk incident to the
high rate of speed, but not the risk of the failure of the engineer to
give him a signal which peculiar circumstances may require; 168 that
a railway employ^ assumes the risks incident to travel over the road
while it is in a reasonably safe condition, but does not assume risks
which grow out of any ordinary defect in the road which renders it
more hazardous than is reasonable, unless he has knowledge of such
defect; 154 that a brakeman who had worked on the train on which the
accident occurred for six months, during which time the mode of
carrying broad-gauge cars, complained of as unsafe, had been fol-
lowed, and cars similar to the one on which the accident occurred had
been frequently carried, the same car itself having been once carried
but a short time before, — assumed the risk of .injury from that mode
of carrying broad-gauge cars; 155 that a brakeman on a freight-train
drawn by two engines takes the risk of the increased strain put upon
the couplings; 150 that a head brakeman, a part of whose duty it is to
fill the water-tank of the locomotive through the manhole, and who
has filled it several times during the trip, assumes the risk of injury
from stepping on the manhole-cover, which he knows is out of re-
pair; 157 that a brakeman on a freight-train who knows that trains are
run at a speed in excess of that provided by a city ordinance, and who
nevertheless remains in the service without protesting, — assumes the
risk; 158 that a brakeman on a freight-train assumes the risk of in-
clement weather conditions, and that a railroad company may run its
trains at any speed it sees fit, irrespective of such conditions ; so that
where a brakeman is thrown from the top of a car on a cold, frosty
morning, when objects are covered with ice, and while the train is
moving at a high speed, he cannot recover; 159 that a switchman on top

"•Schulz ▼. Chicago ftc. R. Co., are assumed by a railway-yardman

57 Minn. 271; s. c. 59 N. W. Rep. employed to clean snow and ice

192. from the switches, where engines

"•Taylor Ac. R. Co. v. Taylor, 79 and cars are running over the

Tex. 104; s. c. 14 S. W. Rep. 918. tracks to the switches where he is

"•Titus v. Bradford &c. R. Co., working).

136 Pa. St 618; s. c. 26 W. N. C. ""McQuiggan v. Delaware Ac. R.

(Pa.) 472; 21 Pitts. L. J. (N. S.) Co., 122 N. Y. 618; s. c. 34 N. Y.

165; 47 Phila. Leg. Int. 496; 8 St Rep. 618; 26 N. E. Rep. 13.

Lane. L. Rev. 93; 20 Atl. Rep. 517. "» Martin v. Chicago Ac. R. Co.

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 114 of 165)