Opinion
Argued December 3, 1888
Decided December 11, 1888
John G. Milburn for appellant. H.J. Swift for respondent.
The plaintiff's intestate had been a switchman for some years and had been for quite a length of time in the employment of the defendant in and about the yard where the accident happened, and he was, therefore, acquainted with the means employed therein by the defendant to accomplish its necessary work. Part of the means was the "frog" which was used to effect the transfer of a train from one track to another which crossed it. Its shape and purpose and the fact that it was unblocked must have been as familiar to the deceased as any other thing connected with the railroad.
It is scarcely to be credited that a man employed as a switchman, and who discharged his duties in the midst of a large number of just such instruments, could possibly be ignorant of their shape or of the fact that they were unblocked, or could fail to understand that there was a liability or chance to get one's foot caught in their converging rails and to suffer some grievous accident therefrom.
The court below very properly held that, by his acceptance of the service and his continuance therein, the deceased assumed the hazard incident to an obvious or known danger. But the court held, with some hesitation, that it might be submitted to the jury as a question of fact whether the deceased was charged with notice of the manner and difficulty of removing his foot when within these converging rails and of the danger of the situation in which he might then be placed.
We feel quite sure that one who worked among these rails daily for months and years, necessarily, was familiar with their shape and general construction, and must have known of the difficulty of removing a foot caught in the space between the rails and the danger of the situation arising therefrom. We cannot believe that any one could thus work and yet, while familiar with the frog, its purpose and use, and with its apparent form and condition, and that it was unblocked (with all of which knowledge the learned court below correctly charged the deceased), could still be ignorant that there was danger to be apprehended by getting his foot caught between the rails, and that there was a liability to have it thus caught. Such liability is seen upon the slightest inspection of the frog when coupled with knowledge (which, we believe, is in the possession of every man) that the rail of a railroad as it rests upon the ground is wider at the top and bottom than in the center.
We can have no doubt that the danger was obvious and known to the deceased. The case cannot be distinguished from De Forest v. Jewett, Receiver, etc. ( 88 N.Y. 264.)
The judgment should, therefore, be reversed and a new trial ordered, with costs to abide the event.
All concur.
Judgment reversed.