Darling v. N.Y., P. & B. R. Co.

• Decision Date: 21 May 1892
• Citation: 17 R.I. 708,24 A. 462
• Court: Rhode Island Supreme Court
• Parties: DARLING v. NEW YORK, P. & B. R. CO.

24 A. 462

17 R.I. 708

DARLING

v. NEW YORK, P. & B. R. CO.

Supreme Court of Rhode Island.

May 21, 1892.

Action by Welcome B. Darling, administrator, against the New York, Providence & Boston Railroad Company, for injuries received through defendant's negligence.

Judgment for plaintiff. Defendant's motion for a new trial denied.

Augustas S. Miller and Arthur L. Brown, for plaintiff.

Lorin M. Cook, for defendant.

MATTESON, C. J. The defendant petitions for a new trial on several grounds, of which three only were urged at the hearing, viz.: (1) That the verdict was against the evidence; (2) that the court erred in its instructions to the jury; (3) that the jury were influenced in their decision by a communication to them by the officer in charge of them.

We think the evidence was sufficient to warrant the jury in finding that the deceased was thrown from the train by coming in contact with the lower bar of the "telltale;" that the telltale, though safe for brakemen upon trains composed of cars of the ordinary height,—the space between the top of a common box car and the lower bar of the telltale being six feet and two and twenty-eight one-hundredth inches,—was unsafe for brakemen upon cars of a greater height, which have come into use for special purposes, such as cars for the transportation of beef, some of which were a part of the train on the night of the accident to the deceased; that the maintenance of a telltale, which was unsafe, by reason of the height of some of the cars in use and by reason of the weight or rigidity of its frame, rendering it likely to throw brakemen from their feet if they came in contact with it, was a breach of the defendant's duty to provide safe appliances for its employes which amounted to negligence. We also think that, while the deceased assumed all the ordinary risks incident to his employment as brakeman, the risk of injury from the telltale was not such a risk. A telltale is not in itself a source of danger, since its purpose is to protect by giving timely warning of the approach to a bridge. Moreover, this particular telltale was dangerous only to brakemen upon cars of a greater than ordinary height. It was therefore not a manifest danger. The deceased had a right to assume when he entered upon the employment that the defendant had performed its duty to provide and maintain safe appliances, and hence that this particular telltale was safe, and, unless it be shown that he had been, in some way, apprised of the danger and continued in the employment, he is not to be held to have assumed the risk of injury from it. The evidence does not show that he had been so apprised. He had been in the employment of the defendant about live weeks. The train went over the side track, under this telltale, on an average two or three times a week, for the purpose of taking on or leaving cars, but only in the night; and though the place was lighted, to a greater or less degree, by an electric light, the darkness and his absorption in the performance of his duties were circumstances not favorable to a close observation of the height of the telltale above the cars; besides, his position as "head middleman" frequently required him to be upon the ground, when the train was passing under the telltale, for the purpose of throwing switches, and even when upon the top of the train he was in no danger,...