Howey v. Lake Shore & Michigan Southern Railway Co. , 13 Misc. 641 ( 1895 )

Hatch, J.

It may be assumed that defendant had caused to be given the assurance, when the car was pulled out from its cripple track, that it was in good condition and proper repair, upon which fact plaintiff had the right to rely. But with this conceded, it does not follow that plaintiff showed himself entitled to recover. When the notice was given that the wrong pin had been pulled, it was undoubtedly competent for the jury to find that it then became plaintiff’s duty to remove the pin and link. The notice warned plaintiff that something was wrong, or the right pin would have been pulled. When ])lilintill reached the car he proceeded to examine the pin and coupler, discovered the character of the coupler, and the difficulty with the pin. Whatever of assurance had been given that the car was in a suitable and proper condition was now removed. If we call it a defective and unsafe appliance, the condition is not changed. Assuming it to he such, its character, nature and extent was as well known then to the plaintiff as it possibly could be to defendant. Indeed, all that defendant now knows rests, in the main, upon plaintiffs statement, and whatever knowledge it was chargeable with was clearly within plaintiff’s conception at that time. No accident had yet happened, no injury was yet sustained. While in the beginning plaintiff had an assurance that the car was in proper condition, yet such assurance in no wise misled him to his damage; before he did any act causing injury he had possessed himself of every fact which defendant knew or ought to have known. Thus, with full knowledge of the •defect, a complete comprehension of his surroundings, with as much knowledge upon the whole subject as defendant, he .attempted to remedy the defect and received injury through the negligent act of a co-employee. Whatever danger there was in and about attempting to correct the defect was obvious in character and known to plaintiff so far as it related to any defect in the coupling; he, therefore, assumed whatever of risk attended his act and cannot hold defendant responsible therefor. Crown v. Orr, 140 N. Y. 450; Davidson v. Cornell, 132 id. 234; Hart v. Naumburg, 123 id. 641.

In addition to this, plaintiff was, by the rule of defendant, required to inform his superior officer of any defect when discovered, and to take such measures as would insure his safety in and about any matter he attempted to do with it. It, therefore, rested with him, when he discovered the defect, to take such steps as would insure his safety if he determined to remedy it. This he did not do, but proceeded to act with knowledge of the defect, the dangers attending its remedy, and with no notice to his superior or fellow-servants. It is, therefore, apparent that what he did he did with his eyes open, full knowledge, and in consequence assumed the attendant risks. No basis existing to sustain a recovery, the judgment should be reversed and a new trial ordered, costs to abide the event.

White, J., concurs.

Judgment reversed and new trial ordered,-costs to abide event.