
    Mary Appel, as Administratrix, etc., Resp’t, v. Buffalo, New York and Philadelphia R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 11, 1888.)
    
    1. Master and servant—Risk op employment—What risk switchmen assume.
    A switchman who has been in the discharge of his duties in the midst of a large number of “frogs ” that were unblocked, will he presumed to have understood the liability or chance to get his foot caught in their converging rails (and to suffer some grievous accident therefrom), and to have assumed the hazard incident to the obvious and known danger. He will be presumed to be familiar with the shape and general construction of the rails used to make such frogs, and of the difficulty of removing a foot caught in the space between the rails and of the danger of the situation arising therefrom. _
    2. Negligence—When railroad companies not liable por death op SWITCHMAN.
    The plaintiff intestate had been a switchman for some years, employed by the defendant in and about the yard where the accident, happened, working in the midst of the tracks, many of which had frogs connected therewith, and whilst there employed his foot was caught in a frog and he was run over and killed. Held, that the defendant was not liable.
    
      Appeal from a judgment of the supreme court, general • term, fifth department, directing a judgment on a verdict in favor of the plaintiff, rendered by a jury at the Erie county circuit, the exceptions having been ordered to be heard in the first instance at the general term.
    The facts will be found fully stated in the general term opinion. 2 N. Y. State Rep., 257.
    
      John Gr. Milhurn, for app’lt; H. J. Swift, for resp’t.
    
      
       Reversing 2 N. Y. State Rep., 257.
    
   Peckham, J

The plaintiff’s intestate had been a switch-man for some years, and had been for quite a length of time m 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 of 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 DeForest 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.  