Ireland v. Gardner

The majority of the court held that the submission of the case to the jury .to find a verdict for the plaintiff upon the sole ground that the guard rail was not blocked, was error, under the case of Appel v. The Railroad Co., 111 N. Y. 550 .

At the time of receiving the injuries for which this action is brought, the plaintiff was engaged in what is known as breaking up a train, in the yards of the defendant near the city of Rochester. This process consisted of uncoupling and taking out freight cars from the train, and shifting them respectively to their proper places on other tracks. The plaintiff was required to go between tbe cars while the train was in motion, in order to

At the time of receiving these injuries, the plaintiff had worked at this particular business three or four days only. For some time prior thereto, he had been engaged in coupling cars, which required Mm simply to couple the coming Car to the car standing still; while the pulling of pins in the process of cutting out cars and shifting them from one track to another required him to enter between the moving cars and to puli 'the pins while they were thus in motion. A coupler was required only to step in between the standing car and the coming car, and drop the pin when the moving car came up. In that work, there was no requirement for the operator to walk upon the tracks. The plaintiff had no experience with this guard rail which caused his injuries, before the time when this accident happened. He had no particular knowledge' of the location of the guardrail. He had no experience in cutting out a car or pulling a pin over such a dangerous place. His attention never had been called to the fact that tMs guard rail and frog or that any guard rails or frogs were dangerous.

The main exception on this appeal arises upon the submission by the trial judge of the question to the jury whether the danger arising from the position of those two rails, and the want of a “ block ” between them to prevent the entry of a foot, was apparent and obvious so that the plaintiff was chargeable with knowledge of the existence of the danger. Under the facts testified to by the plaintiff, in which he is in part corroborated by the witnesses called by the defendant,

The decision of Appel v. Railroad Company, 111 N. Y. 550 , is pressed upon our attention as being an authority against the right of the plaintiff in this action to recover for the injuries so received by him. In that case, however, it appeared that the plaintiff’s intestate had been in the defendant’s employ for some years, and for quite a long time in and about the yard where the accident happened, and was actually acquainted with the frog and knew that it was ■ not “ blocked.” Under these circumstances, the court held that in accepting and continuing in the employment he assumed the hazard of all known and obvious dangers, and-that he was chargeable with notice of the difficulty in removing the foot when caught in a frog, and of the danger to be apprehended therefrom; and therefore that a cause of action was not made out and a refusal to nonsuit was error.

•The court there says : “We feel quite sure that one who worked among these rails, and daily for months and years, necessarily was familiar with their shape and general construction, and must have known of the difficulty of removing a foot caught in the space between the rails, and the danger of the situation arising therefrom. We cannot believe that anyone' could thus work, and yet, while familiar with the frog, its purpose and use, and with its apparent form and condition, and that it was 6 unblocked ’ (with all of which knowledge the court below correctly charged the deceased), could still be ignorant that there was danger to be appreheiided by getting his foot caught between the rails,- and that there was a liability to have it thus caught. * * * We can have no doubt that the danger was obvious and known to the deceased.”

■ In the case before us, however, the chief employment of

Furthermore had the pin in the coupling, which the plaintiff first seized, been in good condition, so as to release from the coupling, in all probability the plaintiff would have avoided those injuries, but as the same did not yield to his clutch, on account of its being bent, he was required to-resort to the coupling on the other car, which took some little time, so ■ long, indeed, as that he traversed sixty-five feet while so engaged in trying to wriggle out the pin. It appears, therefore, that the plaintiff entered between the cars at a point where there was no danger by reason of the rail and the frog, and under ordinary circumstances would have come out without injury before reaching this particularly dangerous spot. While going along with the cars in motion he could not see that his foot was likely to be put into this dangerous place. This fact, in connection with his want of knowledge or information of the location of the “ unblocked” frog, did, in my judgment, justify the jury in rendering a verdict for the plaintiff, in the absence of evidence of a proper inspection of the coupling.

I have examined the several exceptions in the case not hereinbefore considered, and do not find in them any error that would warrant a reversal of the judgment.

The judgment should be affirmed.

Judgment and order reversed and new trial granted, costs to abide event.

Barker, P. J., and Dwight, J., concur; Macomber, J., dissents.