Rumsey v. D., L. & W. R. R.

Opinion by

Mb. Justice McCollum,

The accident was at a grade crossing and it may have resulted from the failure of the driver of the sprinkling wagon to look and listen, or from the neglect of the appellant’s employees to ring the bell or blow the whistle. There is evidence that the driver immediately after the coal train passed and while the rear of it could be seen from the place where he stopped, started to cross the track. He doubtless took it for granted that the way was clear after the coal train was off the crossing and did not look and listen to discover whether another train was following it. There is evidence also that the approach of the locomotive which struck his team was not announced by the ringing of the. bell or the blowing of the whistle. But the jury were correctly instructed that there could be no recovery in this case on the ground of a failure to give these signals, because such failure would be the negligence of a servant for which the appellant would not be liable to a fellow servant or his legal representatives; and the verdict does not inform us whether they were given, and, if they were not, whether the omission to give them caused or contributed to the accident. If the negligence of a fellow servant was the direct and immediate cause of the accident, it is by no means certain that this action can be maintained, even though it should appear that the appellant was negligent in not providing a watchman for the crossing. We do not intend, however, to discuss the matters to which we have referred; we merely allude to them in passing as they were suggested by a careful reading of the testimony, and the instructions to the jury.

The case is before us on the contention of the appellant that the court should have taken it from the jury on the ground that Rumsey’s death was attributable to a risk incident to his employment and which with full knowledge of its character he had assumed, and to his own negligence in being at the time of the accident in a place of known danger and where his duties did not call him.

It appears from the undisputed evidence that Rumsey was in the service of the appellant for twenty-three years, and during the three years immediately preceding his death, in the capacity of conductor of a train between Kingston and Plymouth in Luzerne county. The distance between these points is about four miles. His business was to shift cars, and to carry it on he had charge of a switch engine and á sufficient force of men. In the prosecution of it he passed over the road several times daily. At a point about three hundred and fifty feet north of Plymouth station, and within the limits of Plymouth borough, the railroad was crossed at grade by an old road which subsequent to the accident in question was accepted by the borough as a street. At the crossing there were four tracks* the north bound and south bound tracks and two sidings. In passing by the old road from the main street of the borough to the river the sidings were first crossed, and if there were freight cars upon them, either north or south of the crossing, the view of the main tracks was somewhat obstructed. No one knew better than Rumsey the exact situation at the crossing and the kind and amount of travel over it. He knew from daily observation how and to what extent the sidings were occupied by cars, and he was perfectly familiar with all the conditions at that point which affected the safety of the public and the men engaged in running the trains. With this knowledge he continued in the service of the appellant without complaint of any kind and without an intimation even that the presence of a watchman there would diminish a risk incident to his employment. Under these circumstances the risk created by the crossing in question was assumed by him. The rule on this subject is well stated in the American & English Encyclopedia of Law, vol. 14, pages 845-6, and abundantly sustained by the cases there cited. It is as follows: When a servant employed bj^ a railroad company plainly perceives the risks which he runs, and nevertheless remains performing the same services without complaint and without suggesting how his employment could be made less hazardous, he will be deemed to have undertaken to run the risks incident thereto. This rule required an affirmance of the appellant’s third point.

It is therefore unnecessary to consider the other questions raised in the case.

The fifth specification of error is sustained.

Judgment reversed.