Decided February 16, 1926.
Appeal from Pike Circuit Court.
MOORE CHILDERS and GEORGE B. MARTIN for appellant.
KIRK, KIRK WELLS, STRATTON STEPHENSON and BROWNING REED for appellee.
J.A. Davis, Jr., was one of the yard masters in the yard of the C. O. Railway Company at Shelby, Kentucky. His hours of duty began at ten o 'clock p. m. and ended at six o'clock a. m. Near the lower end of the yard the main line of the railway crosses Shelby creek over a bridge fifty feet in length, each end of which rests upon piers forty-five feet in height. About sixty feet east of the bridge a lead track is put in, which runs out into the yard connecting with the yard tracks, seven in number. About four o'clock a. m. on October 26, 1922, a freight train came in. Davis, as his custom was, took the yard crew and went down the main line to meet this incoming train and to do the work of breaking up the train. They came down from his office about 2,000 feet east of the bridge on a yard engine and when the engine reached a point about a hundred feet from the bridge it stopped and they got off. The incoming train was composed of 106 coal cars, one loaded box car and a caboose. The switch was thrown and the freight train was turned into the yard at the lead track. It came to a halt, leaving the loaded box car and caboose, which were in the rear of the coal cars standing on the bridge. It was an unusually dark and foggy night. Davis, after getting down off the engine, walked along on the south side of the, track with a lantern in his hand, which he held up as though looking at the side of the car, possibly to get the number of the car he wanted. While he was walking along in this way in the dark he, without knowing it, came to the pier of the bridge and fell over the pier to the bottom, 45 feet, and was killed in the fall. This action was brought against the railway company to recover for his death on the ground that the railway company failed to furnish him a safe place to work. The railway company defended on the ground that he knew the situation and assumed the risk. At the conclusion of the evidence the circuit court instructed the jury peremptorily to find for the defendant. The administrator appeals.
The evidence satisfactorily shows that Davis was well acquainted with the ground. He had not only been shown over it when he took the position but had been at work there for two months and knew all about it. His death was due to his forgetting in the dark how near he was to the bridge. The fact was that on the north side of the bridge the company had constructed a sidewalk over the bridge, which the employees were to use when they had occasion to cross it. There was no sidewalk on the south side, the track was on a fill, the ties came out nearly to the edge of the fill, and the company had constructed there a guard by a plank six inches wide nailed to the crosstie of the railway and extending out to the fence post. This plank was something over three feet high at the outer end, but not over a foot from the ground at the lower end. What happened was that Davis walked against the plank and fell over the pier head foremost. It was an inadequate protection, though to have made it higher would have been to have put it where the passing engines would strike it. So the whole case comes down to the question of assumed risk, for Davis well knew of the walk on the other side and also knew the kind of guard that was there on the south side. The action was brought under the federal statute as Davis was engaged in interstate commerce. It is therefore to be decided according to the rule laid down by the United States Supreme Court in such eases. In Jacobs v. Southern Railway Co., 241 U.S. 229, a railway fireman who stumbled in the dark over a pile of cinders between the tracks and fell in front of a moving train on another track, when attempting to board a moving engine with a can of drinking water in his hands, sued to recover for his injuries on the ground that he was not furnished a reasonably safe place to work, but the court held that he assumed the risk. Denying a recovery it said:
"He admitted a knowledge of the 'material conditions,' and it would be going very far to say that a fireman of an engine who knew of the custom of depositing cinders between the tracks, knew of their existence, and who attempted to mount an engine with a vessel of water in his hands holding 'not over a gallon,' could be considered as not having appreciated the danger and assumed the risk of the situation because he had forgotten their existence at the time and did not notice them. We think his situation brought him within the rule of the case, Gila Valley G. N. R. Co. v. Hall, 232 U.S. 94, 102, 58 L. ed. 521, 34 Sup. Ct. Rep. 229."
In Southern Pacific Co. v. Berkshire, 254 U.S. 415, a railway engineer was struck by a mail crane as he leaned out of the cab. Holding that he could not recover the court said:
"But, further, we must take it, as we have said, that Linder perfectly well knew of the existence of the crane where it stood, and could have seen it from his seat had he looked, long before he reached it. He entered the employment of the railroad when it had this appliance manifest in its place. The only element of danger that he may not have appreciated was the precise distance which the point of the crane would reach. But an experienced railroad man cannot be supposed to have been ignorant that such a projection threatened danger, and, knowing so much, he assumed the risk that obviously would attend taking the chances of leaning well out from the train."
These cases and those there followed are conclusive that there can be no recovery here. In 18 R. C. L., p. 687, the general rule is thus stated:
"It may be stated as a general rule that an employee is duly bound to inform himself by all reasonable means concerning the perils of his employment. He must exercise his intelligence, and when a situation suggests investigation and inspection in order that its dangers may fully be disclosed he is under the obligation of investigating and inspecting. The master has a right to expect him to be alert to inform himself of existing conditions, and he cannot attack the master from the shelter of unjustifiable ignorance of the business, machinery and methods which he is employed to use."
Where the employee knowing the risk complains and is promised that it will be remedied, a different rule applies. But where he knows the risk and does not complain he assents to act under existing conditions and cannot complain of the master's nonaction. Here Davis was the master's representative in charge of the yard and if there was a dangerous condition, it was incumbent on him to complain. This he did not do.