
    Ellis R. Williams, Resp’t. v. The Delaware, Lackawanna & Western R. R. Co. App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 10, 1889.)
    
    Negligence—Master and servant—Contributory negligence.
    Plaintiff, a brakeman in the employ of defendant, was standing on top-of a box car in the day time as the train approached a bridge, which he had passed under daily both as fireman and brakeman for seven months. It was the custom for the train to run on a side track and wait for a passenger train to pass, but seeing the engineer put on steam plaintiff turned logo back to the coach at the rear end of the train, and was struck on the head by the bridge and injured. Held, that the plaintiff was guilty of contributory negligence and could not recover.
    (Potter and Vann, JJ., dissent.)
    Appeal from a judgment of the general term of the fourth department, affirming a judgment entered upon a verdict at the Oneida circuit and an order denying motion for a new trial
    
      Francis Kernan, for app’lt; W. T. Dunmore, for resp’t
    
      
       Reversing 6 N. Y. State Rep., 872.
    
   Haight, J.

This action was brought to recover damages for a personal injury.

On the 8th of July, 1882, the plaintiff was engaged as a brakeman upon one of the defendant’s trains composed of freight cars and one passenger coach which was at the rear end of the train. At the time of the injury he was standing on top of one of the box cars composing the train, and as the train passed under the Mitchell street bridge in the village of Norwich, the back of his head struck against the bridge inflicting the injury complained of. There was a side or branch track parallel with the main track passing through under the bridge where the accident occurred which was entered from the main track at either end by means of switches. It was the custom of this train to run upon the side track and stop so as to allow the passenger train to pass.

The plaintiff had gone upon the top of the train so as to operate the brakes and hold the train in position after it had entered upon the branch track. He supposed that the engineer would enter the branch track at the first switch and draw the train up upon it, but instead of doing so, as he neared the switch, he reopened the throttle of the engine, putting on more steam, so as to run through upon the main track to the other end of the branch and then back in upon it. The plaintiff seeing the engineer do this and divining his purpose, turned to go back towards the coach, and was thus proceeding with his back to the bridge when he was struck by the bridge and injured. The height of the bridge from the top of the rail was sixteen feet one and one-half inches. The height of the box cars were from eleven feet two inches to eleven feet six inches. The height of the plaintiff was five feet seven inches. Some of the cars used upon the defendant’s road were lower and some higher than those of the defendant.

The only question which we shall consider in this case is as to whether or not the plaintiff was guilty of contributory negligence, and this depends upon the question as to whether he knew or ought to have known that this bridge was low and that he could not pass under it whilst standing upon the top of the box car.

Upon this point it appears from his own testimony that he first began work upon the defendant’s road in 1880 as a fireman on one of the engines and for six or seven months had run over this road, passing under the bridge daily. He laid off for a time and had again entered the employ of the defendant as brakeman, and as such had run upon this train for upwards of three weeks when the accident occurred. His duty was that of middle brakeman, and he was required to be generally on top of the train so as to hold the train if it was going on a down grade or approaching a station, and to answer signals which should be received from the engineer.

Upon his direct examination he testified that he did not know that the bridge was not of sufficient height to enable him to stand upon the top of a box car and pass under it in safety; that he did not think he had ever stood on the top of box cars and passed under the bridge; that he could not have done it.

Upon his cross-examination, he conceded that he knew of the bridge and its location; that as fireman he passed under it daily and could see it, and after he became a brakeman he passed under it daily; that he understood his place as a brakeman; that when they were approaching a village it was his duty to be on top of the train so as to apply the brakes if required; that this was one of the written rules of the company; that as they were running south through the village of Norwich they were in sight of the bridge; that it was in the day-time and the bridge was in plain sight when he turned his back to it to go to the rear of the train; that he was usually on top of the box cars when they passed under the bridge; that it was his place to be there. Upon the re-direct examination, he further testified that “I never knew of passing under the bridge on top of a box car; that is, to name the car or remember it. All I can say is that I have been on the train when it passed under it going back and forth.” It is quite evident from his testimony that he had on numerous occasions passed under this bridge whilst on top of the train, and if so, he must have known, had he exercised ordinary care and observation, that it was not of sufficient height to permit a person to pass under it whilst standing upon the top of a box car of the company. In this regard we are unable to distinguish the case from that of Gibson v. The Erie Railway Company, 63 N. Y., 449. In that case the plaintiff was struck by the projecting roof of the depot building. He was familiar with the locality and knew of the roof. He had, however, never measured its exact height from the platform or its distance from the top of the cars. His information upon the subject was derived from general observation. In this case the bridge crossing over the railroad was an open, visible, permanent structure which the plaintiff daily observed whilst passing under it in the employ of the defendant. True, he had never measured its height from the rails, but having passed through under the bridge whilst on top of the cars, he must have known that it was not of sufficient height to permit him to stand while so passing. The rule is, that a servant who enters upon employment from its nature hazardous, assumes the usual risks and perils of the service, and of the open, visible structures known to him, or of which he must have known, had he exercised ordinary care and observation. De Forest V. Jewett, 88 N. Y., 264; Appel v. The Buffalo, New York & P. R. R. Co., 111 id., 350; 20 N. Y. State Rep., 90; Haas v. The Buffalo, New York & P. R. R. Co., 40 Hun, 145.

It does not appear that the plaintiff’s attention was diverted by anything that would tend to relieve him from the imputation of contributory negligence on the occasion in question; and inasmuch as such negligence appears from his own testimony, the exception to the refusal of the defendant’s motion for a non-suit was well taken.

The judgment should be reversed and a new trial granted, costs to abide the event.

Bradley, Parker and Brown, JJ., concur. Potter and Vann, JJ., dissent. Follett, Ch. J., not sitting.  