PEIRCE v. CLAVIN, 82 F. 550

JENKINS, Circuit Judge, after stating the facts, delivered the opinion of the court; The objection to the statement by the court of the duty resting upon the plaintiff in error would be well taken, if the error was material. 'We have frequently held that the duty resting upon the master is not an absolute duty; that he is required to use ordinary and reasonable care to furnish appliances reasonably safe and suitable for the use of his servant, and a place reasonably safe in which he may work. Railroad Co. v. Meyers, 24 U. S. App. 295, 11 C. C. A. 439, and 63 Fed. 793; Reed v. Stockmeyer, 34 U. S. App. 727, 20 C.

C. A. 381, and 74 Fed. 186; Railroad Co. v. Johnson, 81 Fed. 679. We do not think, however, that the error is material, and for this reason: The defect in the switch, assuming it to be a defect, had existed for nine months, and was an obvious defect. The evidence discloses that it was the duty of two of the servants of the receiver to make daily inspection, and to keep that part of the road and' yard in repair. They passed daily over the track. They state that they have no recollection of having observed this defective switch.

There was, therefore, manifest negligence upon the part of the receiver in failure to remedy the defect, if the switch, by reason of becoming bent, was dangerous. It was an obvious defect, and had continued for so long a time that the law must imply notice to the master. It would not, therefore, have been error for the court, assuming the switch in its then condition to be dangerous, to have charged, as matter of law, that the plaintiff in error was negligent. Is the defendant in error also chargeable with notice of this obvious defect? If he is, he could not recover.

The switch, if defective and dangerous, was in such condition when the defendant in error entered into the service of the receiver. He assumed, in entering upon-that service, not only such risks and perils as are incident to the performance of his duty, but the risk of such extra hazard and peril, of which he has either actual or presumed knowledge; and, where the defect is obvious, knowledge is presumed of the danger^ which it suggests, and which are apparent. Randall v. Railroad Co., 109 U. S. 479, 3 Sup. Ct. 322; Reed v. Stockmeyer, supra; Logging Co. v. Schneider, 34 U. S. App. 743, 20 C. C.

A. 390, and 74 Fed. 195; Railway Co. v. Rogers, 13 U. S. App. 547, 6 C. C. A. 403, and 57 Fed. 378; Bailey, Mast. Liab. p. 80. The question should, therefore, have been submitted to the jury, whether the defendant in error knew, or ought reasonably .to have known, the danger to him from this alleged defective appliance. In the absence of any evidence on the subject, the presumption ought possibly to be applied as a matter of law; but, in view of the evidence upon the part of the defendant in error, we think it was one proper to have been submitted to the jury.

Knowledge of the alleged defect is denied by him, and his service in the yard in question was mainly at night, and we think it was for the jury to say whether, under all of the circumstances of the case, he should have taken notice of, and be chargeable with knowledge of, the condition of the switch. It must be remembered that, when using this switch, he was engaged in the operation of switching trains, upon which his attention was centered. Could he, or did he, under such circumstances, comprehend the risk to himself from that condition of the switch?

Tn this connection the remarks of Chief Justice Ryan in Dorsey v. Construction Co., 42 Wis. 583, are pertinent, and commend themselves to our judgment: “The safety of railroad trains depends largely upon the exclusive attention of those operating them to tlie track and to the trains themselves.

It is not for the interest of railroad companies or of the public, with like, if not equal, concern in the safety of trains, that persons so employed should he charged with any duty or necessity to divert their attention; and it appears to us very doubtful whether persons operating railroad trains, and passing adjacent objects in rapid motion, with their attention fixed upon their duties, ought, without- express proof of knowledge, to be charged with notice of the precise relation of such objects to the track.

And, even with actual notice of the dangerous proximity of adjacent objects, it may well be doubted whether it would be reasonable to expect them, while engaged in their duties, to retain constautly in their minds an accurate profile of the route of their employment, and of collateral places and tilings, so as to be always chargeable, as well by night as by day, with notice of the precise relations of the train to adjacent objects.

In the case of objects so near the track as to bo possibly dangerous, such a course might well divert tlieir attention from their duty on the train to their own safety in performing it.

Notwithstanding some tilings said in some cases cited for the appellant, we should he rather inclined to think that, in the absence-of express notice of immediate danger, employés operating trains may perforin their duties under an implied warrant that they may so do without exposing themselves to extraordinary danger not necessarily incident to the course of their employment.” The court below ignored wholly the doctrine of assumption of risk, and refused the instructions requested in that behalf, erroneously supposing that absolute knowledge of the defect which existed during the entire time of his service could not, under any circumstances, amount to an assumption of risk, but merely cast upon Mm greater care in the use, or in avoiding danger from the defective appliance.

This is manifest error, for which we think the judgment must be reversed. The doctrine of assumption of risk is not to be confounded with the doctrine of contributory negligence; for, where the former doctrine is applicable, the servant may exercise the greatest care, and yet he precluded from recovery for an injury in the performance of his service,, because the risk was assumed. Miner v. Railroad Co., 153 Mass. 398, 26 N. E. 994.

There are other assignments of error to the charge which are not without merit, but, since there is to be a new trial, and the particular objections may be obviated upon a retrial, we refrain from comment upon them. The judgment will be reversed, and the cause remanded, with instruction to the court below to grant a new trial.