Morrisette v. Canadian Pac. Ry. Co.

• Decision Date: 22 May 1902
• Court: Vermont Supreme Court
• Parties: MORRISETTE v. CANADIAN PAC. RY. CO.

52 A. 520

74 Vt. 232

MORRISETTE

v. CANADIAN PAC. RY. CO.

Supreme Court of Vermont. Orleans.

May 22, 1902.

Exceptions from Orleans county court; Tyler, Judge.

Action for personal injuries by Arthur Morrisette against the Canadian Pacific Railway Company. Judgment for defendant on a verdict ordered on motion, and plaintiff brings exceptions. Reversed.

Argued before ROWELL, MUNSON, START, WATSON, and STAFFORD, JJ.

E. A. Cook and J. W. Redmond, for plaintiff.

F. E. Alfred and W. W. Miles, for defendant.

ROWELL, J. This is case by a servant against the master for negligence in being knocked from the side of a moving freight car by a switch standing near the track. The declaration contains two counts. The first is in common form. The second is like the first, except it alleges that in the province of Quebec, where the accident happened, the law was, at the time in question, that "every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect, or want of skill," and that by said law, as interpreted by the courts of said province, contributory negligence does not defeat recovery; that by said law the defendant was bound to furnish the plaintiff with the safest place in which to work, and that "the word 'person' includes bodies politic and corporate." The defendant pleaded the general issue, and, when plaintiff rested, moved for a verdict: (1) For that on the pleadings and the evidence no recovery could be had; (2) that there was no question of fact for the jury; (3) no negligence shown on the part of the defendant; (4) plaintiff guilty of contributory negligence as matter of law; (5) that be assumed the risk; and (6) that he was not in the line of duty when injured. The court sustained the motion, directed a verdict for the defendant, and rendered judgment thereon, to which the plaintiff excepted.

The plaintiff was head brakeman on a freight train running from Megantic, through Lennoxville, to Sherbrook. The switch in question stood in the yard at Lennoxville, between the main line and siding No. 1, as it is called in the case, and was 22 or 23 inches from the side of an ordinary freight car passing it on the siding. The plaintiff's train, having orders to meet another train at Lennoxville, took said siding in order to clear the main line for that purpose, and the plaintiff, having dismounted from his train to inquire of the operator about the other train, was endeavoring to remount, the train being in motion, and while his hands were hold of the grab irons and his feet in the stirrup, trying to reach a ladder on the end of the car, he was knocked off by the switch and injured. The testimony tended to show that the switch could have been located south of the main line, but that it would not be so convenient there, and could not be seen near so far by a train coming from Megantic. It also tended to show that the plaintiff had never been told that the switch was near enough to the track to knock one from the side of a passing car, and that he did not know it was. Can it be said, as matter of law, that the defendant was not guilty of negligence in placing and maintaining this switch so near the track? The cases bearing on this question are numerous, and need not be reviewed, as that work has been so often done, and the rule established by them so frequently deduced and applied. Thus, in Davis v. Railroad Co., 55 Vt. 84, 90, 45 Am. Rep. 590, it is said: "Where the employment is hazardous, it is very generally agreed that the master assumes the duty of exercising reasonable care and prudence to provide the servant a reasonably safe place and reasonably safe machinery and tools to exercise the employment, and to maintain them in a reasonably safe condition." This is the doctrine of the cases generally, though variously stated. Thus, in Railway Co. v. O'Brien, 161 U. S. 451, 16 Sup. Ct. 618, 40 L. Ed. 766, it is said: "The general rule undoubtedly is that a railroad company is bound to provide suitable and safe materials and structures in the construction of its road and appurtenances, and if, from a defective construction thereof, an injury happens to one of its servants, the company is liable for the injury sustained. The servant undertakes the risks of the employment as far as they spring from defects incident to the service, but he does not undertake the risks of the negligence of the master. The master is not to be held as guarantying or warranting absolute safety in all circumstances, but it is bound to exercise the care that the exigency reasonably demands in furnishing proper roadbed, tracks, and other structures. * * * It is the duty of the company, in employing persons to run over its road, to exercise reasonable care and diligence to make and maintain it fit and safe for use; and, when a defect is the result of faulty construction that the employer knew or must be charged with knowing, it is liable to the employe for injuries resulting therefrom, if he used due care on his part." In Johnson v. Railway Co. (Minn.) 44 N. W. 884, it is said that a railroad company is bound to place signal posts or other structures used in connection with its road, or the operation thereof, at a reasonably safe distance from the track, so as not to endanger brakemen or other employes who work on its trains: and if, for any reason, it is necessary to erect or place such structures so close as to be hazardous to its employes, it is its duty to warn them of the danger, that they may understand the nature of the risks to which they are exposed; and that, in the absence of such notice, they have a right to assume that the company has performed its duty in that respect. Applying this doctrine to the case, it is clear that the question stated must be answered in the negative. But it is claimed that the plaintiff assumed the risk. He did assume it if he knew and comprehended it, or if he ought to have known and comprehended it; but not otherwise, for it was not a risk ordinarily incident to such a service. The plaintiff bad worked for the defendant several years; part of the time as yard brakeman at Megantic; part as spare freight brakeman over this and other portions of the line; and for four or five months before the accident as regular freight brake-man over this part of the line, and as such brakeman had many times passed through Lennoxville, knew the sidings there, and the location of this switch, which he had operated several times. He had never passed it on the siding in question on the side of a car, and had never been told, and did not know, that it was near enough to the track to knock one from the side of a car; had never stayed by the switch when a car passed it, and never had occasion to, and had always found the other switches on the road safe. The switch was not of itself a dangerous thing. Its danger lurked in its nearness to the track. But it is impossible to say as matter of law that that danger could have been seen and comprehended by mere observation, unaided by measurements, seeing a car pass, or some such thing. If it could have been, it is fair to presume that some one whose duty it was would have discovered and remedied it, for the switch had stood there several years. There are many cases supporting this view. The defendant cites Lovejoy v. Railroad Corp., 125 Mass. 79, 28 Am. Rep. 206, as a leading case holding a different doctrine. But that case is unlike this. There the plaintiff knew that the electric signal posts against one of which he struck when leaning out of his engine, were set at the...