Foley v. Jersey City Elec. Light Co.

• Decision Date: 09 June 1893
• Citation: 54 N.J.L. 411,24 A. 487
• Parties: FOLEY v. JERSEY CITY ELECTRIC LIGHT CO.
• Court: New Jersey Supreme Court

24 A. 487

54 N.J.L. 411

FOLEY

v. JERSEY CITY ELECTRIC LIGHT CO.

Supreme Court of New Jersey.

June 9, 1893.

(Syllabus by the Court.)

Action by John H. Foley against the Jersey City Electric Light Company in the Hudson county circuit court to recover for personal injuries. Verdict for plaintiff. On rule to show cause why the verdict should not be set aside. Rule made absolute.

Argued February term, 1892, before the Chief Justice and Depue and Van Syckel, JJ.

Warren Dixon and Gilbert Collins, for plaintiff.

J. Herbert Potts and Chas. H. Voorhees, for defendant.

VAN SYCKEL, J. The plaintiff, while in the service of the defendant company, was called upon to ascend one of the poles of the company for the purpose of trimming a lamp at its top. One of the steps used for climbing the pole was broken off. The plaintiff, before he attempted to go up the pole, saw the defect. He ascended the pole safely, but in descending his foot slipped when he reached the broken step, causing him to fall from the pole, by reason of which his leg was injured. This suit is prosecuted to recover from the company damages for this injury.

The trial judge charged the jury that when one enters a service he assumes to understand it, and takes all the ordinary risks that are incident to the employment; and, further, where the employment presents special features of danger, yet of such a nature that they must be known to the employe, such as are plain and obvious to one ordinarily skilled in the employment, he also assumes the risk of those. Obvious dangers, which he enters upon voluntarily, are impliedly assumed by him if he continues in the service. It is conceded that this was a correct statement of the general doctrine which applies to the relation of master and servant. The contention arises upon the qualification of this rule, which the trial court instructed the jury to apply to this case The jury was directed to inquire whether the danger arising from the absence of the step on the pole was of such imminent character that a person of ordinary prudence, having regard for his own safety, would have declined to use it. If so, the jury was told that the plaintiff could not recover, but, if it were otherwise, if the peril was not so imminent and threatening but that he might with safety go up to the light and trim it and get back again by the exercise of extra care, then, if he was injured in the exercise of such extra care, he could recover. Under these instructions the jury rendered a verdict for the plaintiff. In this case the danger was open and obvious. The plaintiff could have been in no doubt as to the extent of the risk he assumed. In this respect it differs from the cases relied upon to support the distinction upon which the verdict rests. In Hawley v. Railway Co., 82 N. Y. 370, the plaintiff, a locomotive engineer in the employ of defendant, was injured by the overturning of his engine in consequence of the bad condition of the road. It appeared that the plaintiff knew that the road was somewhat out of repair, but he did not know how badly out of repair it was, or that the danger was great. The plaintiff and other engineers had frequently run their engines over the road, and it did not appear that any accident had previously happened. In Kain v. Smith, 89 N. Y. 375, the plaintiff was not familiar with the work in which he was engaged at the time of his injury, nor with the use of the implement which injured him. The risk was not obvious, and the extent of the danger was unknown to him. Patterson v. Railroad Co., 76 Pa. St. 389, was a case where the danger was indeterminate, and the new trial was granted because the trial court had refused to admit evidence on the part of the plaintiff that before the injury he had notified the superintendent of the company of the danger, and he had promised to remove it. It was upon this ground that these cases were submitted to the jury to determine whether the plaintiff was to be charged with the want of due care for his own safety. If the servant knows of the defect, and it is of such a nature that a prudent person will not abandon the service on account of it, then no negligence can be charged to the master for permitting the defect to continue. If the plaintiff was justified in concluding that he could ascend the pole and return with safety by using extra care, the defendant had the right to draw the same conclusion; and in that event the defendant was in no fault. If the peril was of such imminent character that it was imprudent on the part of the plaintiff to attempt to ascend the pole, then, under the rule laid down by the trial...