
    STREET RAILWAYS — RISKS ASSUMED.
    [Geauga (7th) Circuit Court,
    1902.]
    Burrows, Laubie and Cook, JJ.
    Cleveland & Eastern Railroad Co. v. Homer Somers.
    1. Brakeman Having Knowledge of the Failure to Provide Cars with Automatic Couplers Assumes Risk.
    A servant assumes the risks incident to his employment, including defective appliances of which he has knowledge. Hence, a brakeman who, before he enters the service of a railway company, has full notice and knowledge that none of the cars of the company are provided with automatic couplers, as required by Sec. 3365-23 Rev. Stat., cannot recover for an injury received by reason of the use of hand couplers instead of automatic couplers, although the use of automatic couplers is required by statute, and such brakeman is not guilty of any negligence contributing to the injury.
    2. Section 3365-23 Rev. Stat. Does not Apply to Construction Cars on Blectric Railways.
    Section 3365-23 Rev. Stat., requiring railway companies to equip their cars with automatic couplers, is not applicable to electric cars or railways in process of construction, and cars in use for that purpose.
    8. Rule applied.
    A brakeman who is injured by a car loaded with rails which project a foot beyond the end of the car, the brake-staff of such car being removed and the wheels blocked, he being familiar with the method usually adopted in loading such cars with rails, and knowing that the rails project beyond the end, and that the brake is not set, and having such knowledge, undertakes to make a coupling, assumes the hazard of any injury he may receive.
    4. Refusal to Direct Verdict not Error — When.
    Where, in such case, the evidence is not explicit and certain as to the knowledge of the plaintiff of the projecting rails and the removal of the brake staff, it is not error to refuse to direct a verdict for the defendant.
    Heard on Error.
   BURROWS, J.

Somers was injured while engaged as a brakeman in coupling cars, and recovered judgment for this injury.

The petition alleged that the company had failed to provide automatic couplers, as required by the statute ; and that the plaintiff, without fault on his part, was injured by reason of the neglect of the company in this and other particulars mentioned in the petition.

It was an undisputed fact in the case that the plaintiff, Somers, had full notice and knowledge that none of the cars of the company were provided with automatic couplers.

The court charged the jury that it was the duty of the company to have provided such couplers; and further charged the jury that “if the plaintiff knew that there were no automatic couplers then the burden would be upon the plaintiff to show, by a preponderance of the evidence, that the plaintiff used and exercised ordinary care before he would be entitled to recover, provided the injury occurred solely by reason of the want of this automatic coupler.” This was error. There was no circumstance taking the case out of the general rule that a servant assumes the risks incident to his employment, including defective appliances of which he has knowledge. If he was injured solely by reason of hand couplers being used instead of automatic couplers he would not be entitled to recover, however careful he may have been.

We are also of the opinion that the court erred in holding that it was the duty of the company to provide automatic couplers, and this for the reason that the statute is not applicable to electric cars, and was not intended to apply to them, and for the further reason that the statute only applies to railroads or parts of railroads in operation, and not to railroads in process of construction, and the cars in use for that purpose.

The court erred in charging the jury that the plaintiff might recover if they found that he was without fault, and that he was injured by reason of the negligence of the company in any of the particulars mentioned in the petition. The petition charged that the defendant was negligent in not equipping its cars with automatic couplers; also, in the use of cars defectively constructed; also improperly using an angle iron to block the loaded car, and also in providing coupling appliances that were defective and out of repair.

A verdict for plaintiff could not properly have been based upon any of these alleged grounds of negligence, for reasons already given, as to the want of automatic couplers, and, as to the other of said grounds, because there was no evidence tending to prove, either that the company was guilty of negligence as to them or that his • injury was caused thereby.

When the court came to charge the jury, none of these things were in the case, and the jury should have been told that the only grounds of negligence upon which they could place their verdict for plaintiff were the improper loading of the flat car and the neglect to have the brake set on the loaded car. ' Under the instructions given the jury, they may have based their verdict upon some of the other grounds of negligence that had on the trial been eliminated from the case.

The court also erred in refusing to charge the jury upon the question of the assumption of the plaintiff of the risks incident to the doing of his work in the way it was done. Evidence was given tending to show that the plaintiff knew that the rails were thirty-two feet in length, and the floor of the car only thirty feet, and that the rails loaded upon these cars projected beyond the floor at either end a foot, more or less; and knew also that in loading the rails the brake-staff was often, if not always, removed, and a block placed under the wheel of the car to keep it in place when necessary, on account of the grade. On the occasion when plaintiff was injured the car was blocked on account of the grade, the brake-staff was removed, and the loaded rails extended about a foot beyond the floor of the car. The defendant below requested the court to charge that the plaintiff could not recover if he knew that the rails projected and the brake was not set at the time he undertook to make the coupling. This request was not given, either in form or substance, but the jury was, however, instructed that he could not recover if he was guilty of contributory negligence. If the plaintiff was familiar with the mode theretofore usually adopted in doing this business, and knew that these rails projected beyond the floor of the car, and undertook to make the coupling with that knowledge, he assumed the hazard of any injury he might receive therefrom. He had to look out for the projecting rails, if he knew they were there, just as he had to look out for the bumpers, or the car wheels, or any other danger necessarily connected with that business.

The more serious question relates to the refusal of the court to direct a verdict for the defendant. The certain cause of the injury was the extension of the rails beyond the floor of the car, and the neglect of the plaintiff to keep his head below the rails at the time he was coupling the cars. If there had been no projecting of the rails, or if the plaintiff had kept his head below the rails there would have been no accident or injury. Whether the removal of and neglect to use the brake in any way helped to cause the accident is a matter of conjecture. The testimony is not very explicit and certain as to the knowledge of the plaintiff in respect to the projection of the rails or removal of the brake staff; and while it seems to be highly probable that he did see or would have seen these projecting rails, if he gave such attention to the surroundings as a man of ordinary prudence would usually give under like circumstances, yet we think the case was one for the jury.  