Carbine's Adm'r v. Bennington & R.R. Co.
| Decision Date | 11 April 1889 |
| Citation | 17 A. 491,61 Vt. 348 |
| Parties | ADMINISTRATOR OF JAMES CARBINE v. BENNINGTON & RUTLAND RAILROAD CO |
| Court | Vermont Supreme Court |
JANUARY TERM, 1889.
Judgment affirmed. All concur.
Butler & Moloney, for the plaintiff.
The disposition of one question controls this case, and renders the other questions discussed immaterial. A servant assumes all ordinary risks incident to his employment. By entering upon, and continuing in his service, he is presumed to take upon himself its natural and ordinary risks and perils. Railroad managers are bound by law to provide their servants with safe and suitable roadbeds and machinery including all appliances for the discharge of their respective duties; there is an implied contract on their part to perform this duty. No authorities contravene the rules above stated. But a servant assumes no risk caused by his employer's breach of duty, unless he has knowledge of the danger thereby caused, and voluntarily continues in the employment. If with this knowledge he does continue, the increased danger becomes an incident of the service which he assumes, and for any injury resulting therefrom the master is not liable. By the acceptance of the service and the continuance therein, the servant assumes the hazard incident to obvious and known dangers. Gibson v Erie Ry. Co., 63 N.Y. 449; De Forest v Jewett, 88 N.Y. 264; Buzzell v. Laconia Mfg. Co., 48 Mc. 113; Baylor v. Railroad Co., 40 N.J.L. 23; B. & O. R. R. Co. v. Stricker, 51 Md. 47; Devitt v. Pacific Rd. Co., 50 Mo. 302; Smith v. Ry. Co., 69 Mo. 32; Cagney v. R. R. Co., 69 Mo. 416.
The plaintiff's intestate had been, at the time of his death seven months in the employ of the defendant as a brakeman; he was an experienced one, having acted as such for many years. The testimony tended to show that while on the top of a coal car, he was hit by a board in the arch of a bridge near Wallingford and killed; that a person could not stand on the top of a car and ride through the bridge, the latter being too low; that the train upon which Carbine was employed usually contained coal cars, which were higher than common ones; that he was frequently on them, knew of their height, and had ridden on them, passed through the bridge daily, and must have known of its height and condition. The case standing in this position, the jury were told, that if Carbine knew of the defective and dangerous condition of the bridge, he could not recover; that if he engaged as brakeman with knowledge of what his duties were, and continued as brakeman when he knew of the dangers attendant upon his remaining there, then he assumed the risks that he might incur by remaining in the defendant's employ; that if he elected to continue in his employment after he knew of the dangerous character of the bridge, he continued at his own risk. These instructions correctly state the law as applicable to the case at bar. The plaintiff insists that ...
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