Gaffney v. N.Y. & N. E. R. Co.

• Decision Date: 05 February 1887
• Citation: 15 R.I. 456,7 A. 284
• Court: Rhode Island Supreme Court
• Parties: GAFFNEY v. NEW YORK & N. E. R. CO.

7 A. 284

15 R.I. 456

GAFFNEY

v. NEW YORK & N. E. R. CO.

Supreme Court of Rhode Island.

February 5, 1887.

Defendant's petition for a new trial.

This action was trespass on the case to recover for injuries alleged to have been caused by the defendant's negligence. After verdict for the plaintiff, the defendant filed this petition.

Charles E. Gorman and Francis L. O'Reilly, for plaintiff.

H. E. Bolles and Frank S. Arnold, for defendant.

STINESS, J. The plaintiff was employed as brakeman on a freight train, by the defendant, in November, 1883. While in that employment, his train stopped at Caryville, on the defendant's road, to take a box car from a side track, near which were a store-house and two piles of lumber. He coupled a box car to the engine, which then took that and two flat cars down the track to the other box car. On the return of the train thus made up, and while it was going, as the plaintiff says, "a pretty good gait," he claimed that he jumped upon the last car to climb a side ladder to get to his post and, in doing so, struck against one of the piles of lumber, by which he was knocked off, receiving serious injuries. The plaintiff knew about the lumber piles; for one had been there a long time, and the other two days, according to the plaintiff, or two months according to other witnesses. The plaintiff said he "knew it was there, but didn't know it was so close." He claims that the negligence of the defendant consisted in allowing the lumber pile to be placed and to remain so near the track that there was not room enough between the car and the pile for him to ascend the car in safety, thus adding a new and extraordinary risk to his employment.

The defendant introduced testimony to show that the box car had no side ladder, and that the plaintiff was riding back to the switch on the truck of one of the flat cars, and thus was not in the line of his duty. Upon this petition, however, we must assume that the jury found the facts to be in accordance with the plaintiff's claim, and, upon such a state of facts, we think a new trial should be granted. The plaintiff had been a brakeman for several years on this and other roads, and was familliar with the premises and surroundings where this accident occured. Standing near the storehouse, when the train came up, he jumped upon the car from the side of the track where the lumber was, in daylight, when it could be plainly seen. He not only knew the lumber was there, but knew about how far it was from the place where he stepped on the moving train. There was a difference in the testimony about the distance of the pile from the track, the defendant claiming that it was placed at the usual and proper distance, and that the plaintiff was thrown off the car by some part of the clothing catching on the boards; the plaintiff denying this.

When a person enters upon a dangerous employment he not only assumes the risk ordinarily incident thereto, but also the risk he may incur from manifest perils. The former are the risks which enter into his contract of employment; the latter are those which he voluntarily accepts when he knows of their existence. If, therefore, the lumber was at its proper and usual distance from the track, there was no negligence on the part of defendant. There was room for the plaintiff between the car and the lumber, and his injury must have been an accident, liable to happen to those whose business requires them to climb the sides of cars. But if the lumber was placed improperly near the track, no one could know better than the plaintiff the certainty of injury, if he should be on the side of the car when the pile was reached. It had been unloaded from his own train, and the next pile had been hit by cars, when he had assisted to hold it down. His remark, "I knew it was there, but didn't know it was so close," may mean that he did not know it was so close to the place where h...