#### Eugene E. Fredenburg, Resp’t, *v.*The Northern Central Railway Co., App’lt.1

*(Court of Appeals, Second Division,*

*Filed June 25, 1889.)*

1. Negligence—Risks assumed by employees. In an action founded upon alleged negligence of defendant, and brought to recover damages for personal injuries suffered by plaintiff while in the service of defendant as a switchman, *Held,*that when plaintiff entered into defendant’s employment he assumed the usual hazards of the sendee, and such risks as were apparent to observation.

3. Same—Duty oe master.

The injury was caused by plaintiff’s stepping into a cattle guard where he was proceeding to couple cars after they had been weighed by defendant. *Held,*that the fact that the location of the cattle guard was at a place where cars when weighed were commonly and habitually coupled, imposed upon the defendant the duty to use care to make that place reasonably safe for that service of its employees.

3. Same—When master not liable.

*Held,*that if the cattle guard was obvious, or known to plaintiff at the time of the injury, defendant would not be liable.

4. Same—Duty oe servant—Contributory negligence—When not imputed.

*Held, that*while it was the duty of plaintiff to use due diligence to familiarize himself, by observation, with the structures and their situation and condition in the yard, with a view to his own safety in the perform anee of his duty, the fact of his recent entrance into the service, that his duties hitherto had not called him to the place in question, his ignorance of the presence of the cattle guard justified a finding that his failure to escape the injury was not attributable to any want of d.ligence on his part.

Appeal from judgment of the general term of the supreme court in the fourth judicial department affirming judgment entered on a verdict against the defendant.

*Diven & Redfield,*for app’lt; *H. Austin Clark,*for resp’t.

1

 Affirming 41 Hun, 640, *mem.*

Bradley, J.

The action was founded upon the alleged negligence of the defendant, and brought to recover damages for personal injury suffered by the plaintiff while in the service of the defendant. The plaintiff had been in such service three days as switchman in the defendant’s yard at Elmira, N. Y., and then while engaged in coupling cars his arm was crushed, and, as the consequence, was amputated. The evidence warranted the conclusion that the injury was caused by his stepping into a cattle guard where he was proceeding to couple cars. And the charge of negligence against the defendant is made upon the fact that it had put and maintained, as it had, the cattle guard at that place. It was near the scales where the defendant weighed its cars, and on and over it the cars passed when pushed from the scales after being weighed. On this occasion the defendant was engaged in weighing cars.

*551And when the weight of one was taken, that car was shoved off and at the same time another placed on the scales by the movement of the engine at the other end of the train. In that manner cars were displaced from and placed upon the scales until the weighing of those of the train put there for that purpose was completed. When the second one was shoved from the scales, the plaintiff was. directed to go and couple it with the car which preceded it. This he was proceeding to do when he received the injury. The ends, which he sought to couple, of the two cars, were-' over the cattle guard which he stepped into, and fell. And. it must here be assumed that this was the cause of the injury. His arm was caught between the bumpers of those approaching cars, and crushed.

When the plaintiff entered into the defendant’s employment he assumed the usual hazards of the service and such risks as were apparent to observation. *Gibson*v. *Erie R. Co.,*63 N. Y., 449.

But the duty was with the defendant to use reasonable care in providing suitable means, appliances and structures, with a view to the safety of its employees, and that they might not unnecessarily be exposed to danger of injury in the service. The use of cattle guards is essentially proper for recognized purposes at some places on railroads. The question has relation to the location and situation of this one. It had been there for several years. And although it had been usual to couple, over it, cars as they came from the scales, no injury, so far as appears, had resulted from-it. The fact that the location in question Avas the place where cars, when weighed, were commonly and habitually coupled, imposed upon the defendant the duty to use care to make that place reasonably safe for that service of its employees. The description given of this structure was such as to enable the jury to say that it was liable to put in danger of injury a person proceeding to couple cars there without the caution which knowledge of it would enable him to exercise. And, upon the evidence, the finding of the jury was warranted that the defendant, in permitting the cattle guard to remain at that place, in the condition which it was, had failed to perform its duty to its employees, and was chargeable with negligence. But that did not render the defendant liable to the plaintiff, if the cattle guard was obvious or known to him at the time in question. *De Forest*v. Jewett, 88 N. Y., 264; *Appel*v. *B., N. Y. and P. R. R. Co.,*111 id., 550; 20 N. Y. State Rep., 90.

The occurrence was in the evening. It was then dark. And although the plaintiff had a lighted lantern, the evidence permitted the jury to find that he had no knowledge, up to that time, of the cattle guard; and that, without any negligence on his part, he did not observe it at the time he attempted to couple the cars, upon the occasion when he *552.received the injury. It is urged that the plaintiff was bound to make himself acquainted with the situation presented by the. various structures about the yard, and their condition. It is quite true that his duty was to use due diligence to familiarize himself, by observation, with the structures and their situation and condition in the yard, with a view to his own safety in the performance of his duty, and for the protection of himself against injury. But his recent entrance into the service, and the fact that his duties hitherto had not called him to the place in question, enabled the jury to find that his failure to escape the injury was not attributable to any want of diligence on his part in that respect. The case seems to be within the doctrine of *Plank*v. *N. Y. C. & H. R. R. R. Co.*(60 N. Y., 607).

The exception to the denial of the motion for non-suit was, therefore, not well taken. And the questions of fact, presented by the evidence, were properly submitted to the jury.

The judgment should be affirmed.

All concur, except Follett, Ch. J., not sitting.