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cars attached at the rear, until this car came in contact with the other, to which it was to be shackled ; and in making the shackle, the head of the brakeman was caught between the ends of two projecting timbers, and he was instantly killed. This happened about noon, on a clear day. ". The deceased made this shackling from the north side of the track, which was the side on which he was working, and from which he had made the other shacklings on this train. Upon the south side of said cars the lumber did not project, and there was nothing to prevent the deceased from crossing over, and making the shackling on that side." He was acting under the general orders of the conductor of the train to do the shackling on the cars standing on this track ; but the conductor “ gave him no special directions to make the particular shackle which caused the injury complained of, but such cars were a part of the cars standing on said track, and it was the duty of the deceased to do this particular shackle, under the aforesaid general orders of the conductor.” The plaintiff's counsel admitted, at the request of the defendant, “ that lumber and rails are frequently transported over railroads, with ends“ projecting beyond the cars, but such is a dangerous way of loading, and that in such cases shackling must be and is made by the brakeman's stooping down below the projecting timbers or rails. The deceased brakeman might have safely shackled these cars in that way."
The general rule of law is that when the danger is obvious, and it is of such a nature that it can be appreciated and un
derstood by the servant as well as by the master, Assumption or by anyone else, and when the servant has as of risk by
good an opportunity as the master, or anyone else, employe.
of seeing what the danger is, and is permitted to do his work in his own way, and can avoid the danger by the exercise of care, the servant cannot recover against the master for injuries received in consequence of the condition of things which constituted the danger. Williams v. Churchill, 137 Mass. 243; Moulton v. Gage, 138 Mass. 390; Leary 7'. Boston & A. R. Co., 139 Mass. 580, 23 Am. & Eng. R. Cas. 383; Russell v. Tillotson, 140 Mass. 201 ; Haley v. Case 142 Mass. 316; Linch v. Sagamore Manufg Co., 143 Mass. 206; Ciriack v. Merchant's Woolen Co., 146 Mass. 182: Scanlon i'. Boston & A. R. Co., 147 Mass. 484, 38 Am. & Eng. R. Cas. 48; Wood v. Locke, 147 Mass. 604: Dunlap v. Barney, Manuf'g Co., 148 Mass. 51; Crowley v. Pacific Mills, 148 Mass. 228; Probert v. Phipps, 149 Mass. 258. This rule is specially applicable when the danger does not arise from the defective condition of the permanent ways, works, or machinery of the master, but from the manner in which these are used, and
when the existence of the danger could not well be anticipated, but must be ascertained by observation at the time. We are of opinion that this case falls within this rule.
The nature of the danger was such that a brakeman accus. tomed to shackle freight-cars must have understood it. It was obvious, and he was more likely to know exactly what it was, and how it was to be avoided, Deceased gull. than anyone else.
ty of contrib. He was permitted to do the
utory negli. shackling from .either side of the track, and in any gence. manner he chose. It cannot be considered as nećessarily negligent for a railroad company to transport lumber in the manner shown in this case. The utmost that can be urged is that the company should have given notice to a brakeman when cars are loaded in this manner; but this cannot be necessary when it is broad daylight, and the thing speaks for itself. Hathaway v. Michigan Cent. R. Co., 51 Mich. 253, 2 Am. & Eng. Ř. Cas. 249; Northern Cent. Ř. Co. v. Husson, 101 Pa. St. 1, 12 Am. & Eng. R. Cas. 241 ; Louisville & N. R. Co. v. Gower, i Pickle (Tenn.), 465, 31 Am. & Eng. R. Cas. 168 ; Scott v. Oregon R. & N. Co., 14 Or. 211, 28 Am. & Eng. R. Cas. 414; Day v. Toledo, C. S. & D. R. Co., 42 Mich. 523, 2 Am. & Eng. Ř. Cas. 126. See Walsh v. Whitely, L. R. 21 Q. B. Div. 371 ; Yarmouth v. France, L. R. 19 Q. B. Div. 647; Thomas v. Quartermaine, L. R. 18 Q. B. Div. 685.
It is unnecessary to consider whether the facts stated tended to prove a case within the statute if the deceased had been in the exercise of due care. Exceptions overruled.
Injuries to Employes while Coupling Cars with Projecting Loads.See Brice v. Louisville & N. R. Co. (Ky.), 38 Am. & Eng. R. Cas. 38; Haugh 7. Chicago, R. I. & P. R. Co. (Iowa), 31 Id. 173; Louisville & N. R. Co. v. Gower (Tenn.). 31 Id. 168; Louisville & N. R. Co. v. Brice (Ky.), 28 Id. 542 : Scott v. Oregon R. & Nav. Co. (Ore.), 28 Id.414; Brown v. Atchison, T. & S. F. R. Co. (Kan.), 15 Id. 271; Northern Cent. R. Co. v. Husson (Pa.), 12 Id. 241; Atchison, T. & S. F. R. Co. v. Plunkett (Kan.), 2 Id. 127: Day v. Toledo, C. S. & D. R. Co. (Mich.), 2 Id. 126.
Coupling-Contributory Negligence-Projecting Load.-Plaintiff's intestate was conductor of a switching crew in defendant's yard, having charge of all the movements of cars within or about the yard. While acting as such, and attempting to couple two cars in the usual course of business, his head was struck by a projecting piece of timber upon a moving car, and he was killed. The cars were loaded and handled in the usual way. Plaintiff's intestate was experienced in his business, and knew the usages of the yard. Held, that plaintiff assumed the risk of accident as incident to his employment, and that he could not recover. Boyle v. New York & N. E. R. Co., Mass. Sup. Jud. Ct., Feb 26, 1890.
Same--Instructions--Negligence of Engineer and Fireman.--Plaintiff sought to recover damages for injuries sustained in uncoupling a locomotive. He alleged that those in charge of the engine failed to obey his signals after he had gone between the locomotive and the car. Held, that an instruction that negligence on the defendant's part was not proved, except the evidence showed that the speed of the train was increased after plaintiff went between the car and the engine, or that those in charge of the engine knew that plaintiff had gone there and failed to stop upon receiving his signal, was properly refused, the fact that the failure of the engineer and fireman to know that the plaintiff had gone between the engine and car may itself have been negligence being ignored. Held, also, that an instruction that if the engineer and fireman, or either of them were aware of plaintiff's perilous condition and heard his call, but failed to stop the engine by reason of which plaintiff was injured, they were guilty of negligence when there was evidence that they used every available means to stop the engine, should not have been given, as it released the defendant from liability if the fireman and engineer had not been previously negligent. Neville v. Chicago & N. W. R. Co., Iowa Sup. Ct., Jan. 31, 1890.
Same-Use of Freight Engine instead of Switch Engine.-In an action for damages for negligently causing the death of plaintiff's husband while engaged in coupling a car, if it appears that the coupling was made by an ordinary freight engine, and not by a switch engine, evidence that signals can be better seen from switch engines, and that they are more easily handled, is admissible. Missouri Pac. R. Co. v. Lamothe, Tex. Sup. Ct., Feb. 14, 1890.
Same - Contributory Negligence-Assuming Dangerous Position.-Plaintiff was employed as a “ wiper" at one of defendant's roundhouses. It was part of his duty to go with the dispatcher or “ hostler” when the latter, acting as an engineer, ran the locomotives to and from the roundhouse to the main track, where the regular engineer customarily assumed or surrendered control. When with the dispatcher upon the locomotive, it was plaintiff's duty to aid in putting in water and fuel, to open and close switches, and'occasionally to couple the locomotive to cars which might have to be moved a short distance. No instructions had been given to the plaintiff as to the manner of coupling cars, nor had he been informed of any rules which required the use of signals by the use of the bell or otherwise, except that he had observed that it was the usual practice for the engineer to receive a signal from the person who was making the coupling, and that on one occasion he had been told by the dispatcher that he dared not move the engine before ringing the bell. On the day of the accident, plaintiff by the dispatcher's orders, stepped to the end of some cars that he might couple them to the locomotive. Finding the pin fast in the draw-head of the car he stepped to the tender of the locomotive, obtained another pin, returned to the car, and while attempting to drive the fastened pin out of the draw-head, was struck by the locomotive. The locomotive had been stopped about 10 feet from the cars, and it was moved back upon him by the dispatcher without any warning whatever. Held, that the testimony was not sufficient to show the plaintiff to have been guilty of contributory negligence. Rehman v. Minneapolis & N. W. R. Co., Minn. Sup. Ct., Feb. 18, 1890.
Contributory Negligence-Car Repairer-Assuming Dangerous Position"Kicking." --It appeared that plaintiff's intestate, a car repairer, had long been familiar with the manner in which cars had been removed at the place where he received his injury. He knew that a newly loaded car was liable to be “ kicked” up against the other cars and thus to push them forward. While engaged in repairing a car with three or four cars standing behind him, an interval being left open at his request, a newly loaded car was kicked behind him with sufficient force to drive them across the interval and upon deceased, killing him instantly. Held, that if under these circumstances he voluntarily went to work in the space between the cars, giving no notice that he was there, he was guilty of contributory negli
gence in putting himself in a position of danger, and that if on the other hand, he requested the conductor to leave the space open, and such request is to be taken as notice of his being between the cars, then the omission to need this notice and the “ kicking " of the car while he was there, were negligence on the part of his fellow-servants for which the defendant was not liable. Whitmore v. Boston & M. R. Co., Mass. Sup. Jud. Ct., Jan. 2, 1890.
CANADIAN PACIFIC R. Co.
(18 Ont. Rep. 314.) Master and Servant-Unpacked Frog_"Person Injured" thereby-Construction of Statute.-Section 262, sub-sec. 3, of 51 Vic., chap. 29 (D.) provides that “the spaces behind and in front of every railway frog or crossing, and between the fixed rails of every switch, where such spaces are less than five inches in width, shall be filled with packing up to the under side of the head of the rail," and sect. 289 of the same Act provides that “every company, * causing or permitting to be done, any matter, act or thing contrary to the provisions of this Act or the special Act *
or omitting to do any matter, act or thing required to be done on the part of any such company,
* is liable to any person injured thereby for the full amount of damages sustained by such act or omission," etc. The plaintiff, who had been for some months employed at the place where the accident happened, as a switch foreman, while in the course of his duty in the act of uncoupling cars, had his foot caught in an unpacked frog, where it was crushed by the wheels of the cars. Held, that, although a servant of the defendants, he was a “person injured" within the meaning of the statute, and entitled to maintain an action for negligence.
Same-Notice --Assumption of Risk.—The jury, having found that the frog was not packed, in reply to a question whether the plaintiff had “notice or knowledge or ought he to have had notice or knowledge that the frog was not packed," answered : “ We believe he did not have notice, and should have had notice," and in answer to another question they negatived contributory negligence on the plaintiff's part. Held, even assuming that the meaning of the answer was to impute notice of the danger to the plaintiff, it would not prevent his recovering so long as he himself was not negligent, there being no finding or evidence to sustain a finding that the plaintiff, freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.
ACTION by John W. Le May against the Canadian Pacific R. Co. for negligence in not having a certain space at a frog in the railway track filled with packing, by reason of which his foot was caught in the unpacked frog, and was run over and crushed by the wheels of a railway car. The facts are fully set out in the judgment of the divisional court. Five questions were submitted to the jury, four of which, with the answers are set out in the judgment of FERGUSON, J., and the fifth was as to the amount of damages, if any, which were found at $2,500.
The judge reserved judgment on the findings until after argument, and then rendered the following opinion :-FalCONBRIDGE, J.-Mr. Shepley's able and ingenious argument merits more consideration and more elaborate treatment than I am able to give it in view of the limited time at my disposal. It is of the last importance that the parties should be able, if they so desire it, to move against this judgment at the next sittings of the divisional court. With much doubt and hesi. tation, I refuse to give effect to his contention that the ef. fect of $ 289 of 51 Vic., chap. 29, (D.) is merely to declare the want of packing to be an act of negligence and disregard of duty on the part of the defendants, and that a servant must otherwise bring himself within the rules of the common law before he can recover. If I am right in this, it is not necessary to decide whether the knowledge of a section foreman is notice to the company. I enter judgment for the plaintiff with full costs.
From this judgment the defendants appealed to the divis. ional court.
Shepley for the appeal.
Boyd C.--Le May now aged twenty-five years, went into the service of the Canadian Pacific Railway in December,
1887, and was promoted to the position of switch
foreman in July, 1888. On 22 May, 1888, the Rail. way Act, 51 Vic. chap. 29 (D.) was passed, which provided for the packing of railway frogs. On 6th August the side track was constructed near Port Arthur, on which the accident occurred on 20th October, whereby the plaintiff lost his foot by reason of the omission of the defendants to comply with the statute in this particular. Sec. 262 gives directions for packing frogs; and sec. 289 provides that the company which omits to do anything required to be done by the company (i. e., by that statute) is liable to the person injured thereby for the full amount of damages sustained by such omission. The plaintiff's action is founded on a. statutory breach of duty on the part of the defendants, by which he has been maimed for life.
It was argued that he was not, being a servant of the company, within the meaning of the statute. To that may be
answered the plain meaning of the words which
extend to “ any person injured.” Borrowing the son” injured language of Locke, “We must consider what per
son stands for, which I think is a thinking, intelliphrase. gent being. It is ordinary knowledge, which even
judges must not forget in the presence of a statute, that of all persons in the community those most exposed to
“ Any per.