Owen v. New York Central Railroad

Present — E. D. Smith, Dwight and Johnson, JJ.

By the Court — Johnson, J.

If the learned justice, befor'é whom this cause was tried, committed any error in disposing of it at the trial, it was not an error of which the plaintiff can complain. He should, undoubtedly, at the close- of the evidence, have nonsuited the plaintiff, or ordered the jury to find a verdict for the defendant, as requested. • The risk of injury, by means of'the passage of the train of cars under the bridge in question, must be held to 'have beeSn 'assumed by the plaintiff, when he entered the defendant’s service as a brakeman' on the train. He had been in "the"defendant’s'' employ in the same capacity, and u^ on'the same train,'before the present employment for a year or more, at which time he had passed-daily under this same bridgé,'which has been at its' present height ever since the road was constructed: The danger was open and obvious, and within the plaintiff’s personal knowledge, at the time hie' entered the defendant’s service the last time.' It was 'a danger clearly incident to the service he undertook to perform. • He knew, as well as his employer, the perils 'of the business, at least as respects the bridge in question, and the law will imply that he assumed the risk of personal injury. (Sherman v. The Rochester and Syracuse R. R. Co., 17 N. Y. R., 153, and cases there cited; Faulkner v. The Erie R. R. Co., 49 Barb., 324 .) Citations *111 might be multiplied to any extent, but it is unnecessary. The decision in the case of Warner v. The Erie R. R. (49 id., 558), has been overruled by the Court of Appeals. (S. C. 39 N. Y. R., 468.) The rule is well settled.

But if the rule were otherwise, upon the evidence in this case, the plaintiff was not entitled to recover upon another ground. The injury was caused by his own negligence. He admits that he knew this was a low bridge, and he must have known that he could not pass under it while on the top of the cars without injury, unless he stooped or lowered his person sufficiently to avoid a collision. He might láve avoided all injury by the exercise of the most ordinary care and caution. In this view of the case, the objections taken to the charge are of no moment. It answers, also, the exception to the ruling, excluding the evidence offered by the plaintiff, that other persons had been killed at the same crossing. That evidence was wholly immaterial, if the plaintiff took upon himself the risk of injury to his person from that structure, as he undoubtedly did. The order d enying a new trial must therefore be affirmed, and judgment ordered upon the verdict.

Order affirmed.