Howery v. Lake Shore & M. S. Railway Co.

It may be assumed that defendant had caused to be given the assurance, when the car was pulled out from its cripple track, that it was in good condition and proper repair, upon which fact plaintiff had the right to rely. But, with this conceded, it does not follow that plaintiff showed himself entitled to recover. When the notice was given that the wrong pin had been pulled, it was undoubtedly competent for the jury to find that it then became plaintiff’s duty to remove the pin and link. The- notice warned plaintiff that something was wrong, or the right pin would, have been pulled. When plaintiff reached the car he proceeded to examine the pin and coupler, discovered the character of the coupler, and the difficulty with the pin. Whatever of assurance had been given that the car was in a suitable and proper condition was now removed. If we call it a defective and unsafe appliance, the condition is not changed. Assuming it to be such, its character, nature, and extent was as well known then to the plaintiff as it possibly could be to defendant. Indeed, all that defendant now knows rests, in the main, upon plaintiff’s statement, and whatever knowledge it was chargeable with was clearly within plaintiff’s ©exception at that time. No accident had yet happened, no injury was yet sustained. While, in the beginning, plaintiff had an assurance that the car was in proper condition, vet such assurance in no wise misled him to his damage. Before he did any act causing injury he had possessed himself of every fact which defendant knew, or ought to have known. Thus, with full knowledge of the defect, a complete comprehension of his surroundings, with as much knowledge upon the whole subject as defendant, he attempted to remedy the defect, and received injury through the negligent act of a e©employé. Whatever danger there was in and about attempting incorrect the defect was obvious in character, and known to plaintiff so far as it related to any defect in the coupling. He therefore assumed whatever of risk attended his act, and cannot hold defendant responsible therefor. Crown v. Orr, 140 N. Y. 450 , 35 N. E. 648 ;

WHITE, J., concurs. TITUS, C. J., dissents.