Whipple v. N.Y., N. H. & H. R. Co.

Decision Date24 July 1896
Citation19 R.I. 587,35 A. 305
PartiesWHIPPLE v. NEW YORK, N. H. & H. R. CO.
CourtRhode Island Supreme Court

Action by Robert S. J. Whipple against the New York, New Haven & Hartford Railroad Company. Verdict for plaintiff, and defendant moves for a new trial. Motion denied.

Walter B. Vincent, for plaintiff.

Frank S. Arnold, for defendant.

MATTESON, C. J. This is an action of the case for negligence. The accident which caused the injuries to the plaintiff occurred about 2 o'clock in the afternoon, on December 22, 1894, in the defendant's freight yard in Providence, where the plaintiff had been employed as a brakeman in the making up of freight trains for two or three months previously. Just prior to the accident, the switching engine, with the plaintiff riding on the footboard on the rear of the tender, had backed down in a southerly direction on a side track to a point opposite the freight house, for the purpose of taking on some cars standing on the side track. The plaintiff stood on the left-hand end of the footboard, as the engine was backing down, looking towards the cars which were to be coupled to the engine. When the engine had reached the cars, the plaintiff made the coupling, gave the signal to the engineer to go ahead, and started to climb onto the top of the car next to the engine; his duty requiring him to be in that position, so that he could transmit to the engineer the signals which should be given to him by the conductor. There was no ladder on the end of the car, and, in order to climb to the top of it, the plaintiff stepped from the footboard onto the drawbar of the tender, thence obliquely to the left onto the corner of the car, at the same time taking hold of a round of the ladder on the westerly side of the car near the end, and swinging himself around the car, and began to ascend the ladder. Meanwhile the train had started, in obedience to the signal given to the engineer to go ahead; and when the plaintiff had so far ascended the ladder that his left hand was on the topmost round, and he was reaching up with his right hand for the handle on the top of the car, his back came in contact with a telegraph pole belonging to the defendant, and used to support some of its signal wires, and he was swept from the ladder, and fell to the ground, receiving the injuries for which he sues. The telegraph pole was 3 feet 5 1/4 inches from the outside of the westerly rail of the side track, and had stood in that location for a number of years. The side of a car such as were in use by the defendant at the time of the accident projected beyond the side of the rail 20 inches, and the ladder on the side of it 3 1/8 inches further. The pole inclined somewhat towards the side track, so that at the height of 11 feet (that being the height of the top of the car) the space between the pole and the ladder was 15 1/8 inches. By experiment, made subsequently to the accident, it appeared that this space, though sufficient for a man to pass without coming in contact with the pole if standing erect on the ladder, was not sufficient by 7 or 8 inches for him to pass the pole without coming in contact with it when in the act of climbing the ladder. The jury in the common pleas division returned a verdict for the plaintiff, and the defendant petitions for a new trial, alleging that the verdict is against the evidence, that the instructions of the court to the jury were erroneous, and because of newly-discovered testimony. The defendant contends, in support of its petition, that it had a right to locate its telegraph poles, switch stands, bridge abutments, station platforms, and other similar structures, near to its tracks, although the location and maintenance of these structures in close proximity to its tracks might involve the risk of injury to its employes; that as the danger of contact with such structures is a matter of common knowledge, and as they are objects plainly visible, their presence is at once suggestive of danger; and, therefore, that the risk of being hit by a pole was an obvious danger, and one assumed by the plaintiff when he entered Into the defendant's service. There are cases which apparently support these contentions, but they do not commend themselves to our judgment. We do not think that a different rule should be applied to railroad corporations from that which is established in reference to other employers, viz. that the master is bound to take ordinary and reasonable care not to subject his servant to unreasonable danger, by sending him to work on dangerous premises or with dangerous appliances, and that if he fails in this respect, and the servant has been injured in consequence, without fault on his part, and without having voluntarily assumed the risk of the master's negligence, with full knowledge or competent means of knowledge of the danger, he is entitled to recover for the injury sustained. Thomp. Neg. 972, 973, and cases cited. In view of this rule, we cannot doubt that the location and maintenance of the telegraph pole in the position in which it stood relatively to the side track was negligence, since the necessary result was to expose...

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28 cases
  • George v. St. Louis & S. F. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 2, 1910
    ......Railroad, 89 Wis. 188 [61 N. W. 765]); Railroad v. Welch, 52 Ill. 183 [4 Am. Rep. 593]; Whipple v. Railroad, 19 R. I. 587 [35 Atl. 305, 61 Am. St. Rep. 796]." In our opinion this contention of counsel for appellant is untenable; and, under the ......
  • Chicago & N.W. Ry. Co. v. Ott
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    • June 22, 1925
    ...true, it would not alter the verdict, since it merely related to the measure of damages; Schlencker v. Risley, 38 Am. Dec. 100; Whipple v. R. R. Co., 35 A. 305; if were impeaching in character, it would not justify a new trial; In re Est. of Chas. Colbert, 31 Mont. 461; People v. Williams, ......
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    • January 24, 1938
    ......671; Reading Co. v. Geary, 47 F.2d. 142; L. R. & Ft. S. Ry. Co. v. Voss, 18 S.W. 172;. Georgia Pac. Ry. v. Davis, 9 So. 252; Whipple v. N. Y., N. H. & H. R. Co., 35 A. 305; illinois. Terminal R. Co. v. Thompson, 71 N.E. 328;. Pikesville R. & E. G. R. R. v. State, 42 A. ......
  • Charlton v. St. Louis & San Francisco Railroad Co.
    • United States
    • United States State Supreme Court of Missouri
    • December 22, 1906
    ...... this case may not have been followed in a later one,. Scidmore v. Railroad, 89 Wis. 188); Railroad v. Welch, 52 Ill. 183; Whipple v. Railroad, 19. R.I. 587, 35 A. 305.]. . .          Cases. may be found from Indiana, Iowa, Washington, New York,. Massachusetts ......
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