Renninger v. New York Central & Hudson River Railroad , 42 N.Y.S. 813 ( 1896 )

HARDIN, P. J.

At the close of the plaintiff’s evidence, the defendant moved for a nonsuit on several grounds, and among them on the ground that “by the plaintiff's testimony it appears that he himself had ample opportunity to observe the defect, if a defect had existed, in any appliances furnished”; and, secondly, that it appeared that the injuries were received by reason of a risk which the plaintiff assumed, and on the further ground that no negligence was shown sufficient to charge the defendant. The motion for a nonsuit was denied, and an exception was taken. At the close of the whole evidence, the defendant moved for a direction of a verdict in its behalf. The motion was denied, and an exception was taken.

Before the plaintiff stepped in between the car and the engine, he had ample opportunity to inspect the pin and link in the car he was about to attach to the engine. He could have approached the car, and made an examination of the pin and link, and discovered whether it was readily removed when applying such force as his hand would bestow upon the pin. He made no such effort. On the contrary, he allowed the opportunity to pass by, and signaled the engineer to approach, and placed himself voluntarily in the place where he received the injuries. As he said, and as the evidence discloses, and as common observation indicates, there is more or less difficulty in removing pins from drawheads caused by the ordinary incidents attending their use. It seems the plaintiff voluntarily ventured to place himself in a point of danger without having used the caution -which a person of ordinary care and prudence should have exercised. It is now well settled that an employé takes the ordinary risks incident to the business in which he is employed. Kaare v. Iron Co., 139 N. Y. 369, 34 N. E. 901; Flood v. Telegraph Co., 131 N. Y. 603, 30 N. E. 196; Albert v. Railroad Co., 80 Hun, 152, 29 N. Y. Supp. 1126; Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986; Graves v. Brewer, 4 App. Div. 330, 38 N. Y. Supp. 566.

In France v. Railroad Co., 88 Hun, 318, 34 N. Y. Supp. 409, it was said:

“As a rule, a servant entering into an employment which is hazardous assumes the usual risks and perils of the service,—those which are apparent to ordinary observation, or which he must know if he exercises ordinary care and observation; and. when lie accepts or continues in the service with knowledge of the structures or implements used from which injury may be apprehended, he assumes the hazards incident to the situation.”

In Crown v. Orr, 140 N. Y. 452, 35 N. E. 648, O’Brien, J., alludes to the rule, and states that if the servant voluntarily enters into or continues in the service, without objection or complaint, having knowledge of “or the means of knowing the dangers involved, he is deemed to assume the risk, and to waive any claim for damages against the master in case of personal injury to him. * * * He is bound to take notice of the ordinary operation of familiar laws, and to govern himself accordingly, and, if he fails to do so, the risk is his own. He is bound to use his eyes to see that which is open and apparent to any person so using them, and, if he neglects to do so, he cannot charge the consequences upon the master.”

The trial judge charged the jury “that one of the dangers to be apprehended by the brakemen in the ordinary operation of the road was the misfit of links and pins, and the possibility that in coupling, or attempting to couple, they might not successfully do so.” And he further charged “that this being so, being one of the dangers to be apprehended, it was one of the risks incident to the business which the plaintiff assumed.” When the court had given the instructions just quoted to the jury, the counsel for the defendant asked the court to direct a verdict for the defendant. The court thereupon declined, and an exception was taken. Then the defendant excepted to that part of the charge of the court which submitted the question to the jury “whether the plaintiff exercised ordinary prudence in giving the signal for the engine to start before endeavoring to ascertain the condition of the coupling.” The counsel for the defendant then asked the court to. charge the jury “that, the possibility of not making a successful coupling being one of the risks of the employment, the plaintiff was bound to examine such instruments before attempting to place himself in a-position of danger.” The court declined so to instruct the jury, and the defendant took an exception. Then the counsel for the defendant took an exception to that part of the charge of the court “that the-plaintiff has a right to assume that the link and pin were in order, and that he might operate them as they were ordinarily used.” The court modified its charge by saying to the jury, “You may be able to say from the testimony that he had a right so to assume,” and to that an exception was taken by the defendant. The evidence fails to show that the plaintiff exercised that care and caution that a person of reasonable prudence, under the circumstances, should have exercised.. The verdict in that regard is not satisfactory. The judgment should-be reversed, and a new trial ordered, with costs to abide the event.

Judgment and order reversed, and a new trial ordered, with costs to. abide the event.

POLLETT and GREEN, JJ., concur.