Lindsay v. New York, N.H. & H.R. Co.

• Decision Date: 06 December 1901
• Docket Number: 24.
• Citation: 112 F. 384
• Parties: LINDSAY v. NEW YORK, N.H. & H.R. CO.
• Court: U.S. Court of Appeals — Second Circuit

112 F. 384

LINDSAY v. NEW YORK, N.H. & H.R. CO.

No. 24.

United States Court of Appeals, Second Circuit.

December 6, 1901

Sumner B. Styles, for plaintiff in error.

Henry N. Taft, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges, and TOWNSEND, District judge.

LACOMBE Circuit Judge.

The claim of the plaintiff is, in substance, that while discharging his duty as a brakeman (or pinpuller) in one of the yards of the defendant, at about 2 a.m. July 9, 1899, he stepped or slipped into a sluiceway or drain that ran under and across the tracks of the defendant railroad, which was open and uncovered at that point where the plaintiff slipped and fell into the same, and that it was directly in the path of the plaintiff in the discharge of his duty as such brakeman, and by reason of his fall he was run over by the cars he was about to couple and severely injured. He testified that he was employed in this yard continuously since September of the year before. It will be perceived that, if upon the facts of the case it appears that the risk he encountered to his hurt that night was a risk which it must be held he assumed when entering into or continuing in the employ of defendant, there will be no necessity to examine into the other questions, which have been argued here at length, viz. whether defendant was negligent, and whether plaintiff's negligence contributed. For the present therefore, it may be assumed that the place where he was set to work was not reasonably safe, and that he acted on the night in question with reasonable prudence under all the circumstances.

The rule of law governing assumption of risk is familiar. The employe has the right to assume that the employe will use reasonable care to secure him a safe place to work in. He may rely on this assumption, subject, however, to the exception that, where there exists a defect known to him, or plainly observable by him, he cannot recover for an injury caused by such defect if he continues to work where it exists. Railway Co. v. Archibald, 170 U.S. 665, 18 Sup.Ct 777, 42 L.Ed. 1188. Where there is reasonable ground for difference of opinion as to whether the defect was 'plainly observable by him,' the jury should decide but when it is plainly thus observable the court will dispose of the case by direction of a verdict. Citations of opinions in other cases are not especially helpful, since the decision of each case necessarily...