On appeal from the New Jersey Supreme Court, whose opinion is reported in 106 N.J.L. 264.
For the appellant, Quinn, Parsons & Doremus (John J. Quinn and Theodore D. Parsons, of counsel).
For the respondent, William A. Barkalow (De Voe Tomlinson, of counsel).
The opinion of the court was delivered by
CASE, J. This is an action for personal injuries incurred by the plaintiff, a young man eighteen years of age and an employe of the defendant in its interstate commerce activities.
The action is under a federal statute which is not specified with certainty to us but which presumably is the Federal Employers' Liability act. 45 U.S.C.A. §§ 51, 59. Plaintiff was nonsuited upon the theory that the evidence disclosed that he, as a matter of law, assumed an obvious risk in attempting to mount a moving train in the circumstances and conditions detailed in his own testimony and that this assumption of risk, under the federal statute and decisions, resulted in no cause of action; and he appeals from the judgment of nonsuit. The ruling of the trial court at this the second trial was in accordance with the determination of the Supreme Court (reported in 106 N.J.L. 264; 149 A. 125), on rule to show cause granted after the first trial whereat a verdict was rendered by the jury in favor of the plaintiff. The finding of the Supreme Court was that the testimony of the plaintiff demonstrated that he had no cause of action. The testimony at the second trial on behalf of the plaintiff was said by the trial court in its deliverance to be precisely the same as at the first; and it is not disputed that it is essentially the same. The trial court further remarked that under the circumstances the determination of the Supreme Court as to the first trial should prevail at the second.
Plaintiff resided at Long Branch and had been employed by the defendant for about a year as a signal man's helper in the repair of signals along the railroad. He had also done work for defendant in taking care of switches and signals. In going to and from his work he used trains of both the defendant and the Pennsylvania railroad. He must be judged an experienced employe in such respects as are pertinent to this case. On the day of the accident be boarded a train of the defendant company at Branchport en route for his day's work at Point Pleasant where, as he knew, the run of the train ended and where, along with all the other passengers, he got out. At the Point Pleasant station he met his foreman who instructed him to get back on the train and go to Bay Head to get some compound that was needed for the repair of a cable. Plaintiff turned toward the train,
found that it was then moving, and jumped on the steps at the front entrance to the first car. The car was of the vestibule type with a hinged "trap" platform surmounted by a door. The platform was then down, although it is inferable that the door was open. Plaintiff says he had "hopped on" before he noticed that the trap was down, and that having endeavored unsuccessfully to raise the trap he "just had to hang there." After proceeding an undefined distance, in excess of one hundred and fifty feet, he was hit by a switch post and sustained injuries for which he sues.
Appellant's first point is that there was no apparent danger, the risk of which he assumed. The vestibule platform was down. It was a visible, effective barrier against entrance to the car. Its obviousness was such that plaintiff, even against his contention, must be presumed to have seen it. He could not have attempted to board the car without being fully aware of it. That being so, plaintiff assumed any risk that arose out of that condition, the danger of which was known to him or was so obvious that an ordinarily prudent person under the circumstances would have appreciated it. Gila Valley, &c., v. Hall, 232 U.S. 94; 58 L. Ed. 521. It is, we think, apparent to any reasonably prudent person that in hanging precariously to the side of a railroad train, with body protruding, and without thought for or precaution against known or unknown fixed objects along the way, one is in physical danger. Plaintiff did know that the switch post, by which he was hit, was there, and although he testifies that he did not do anything to avoid being hit by it because he did not know he was going to be struck, nevertheless, having knowledge of the material conditions, plaintiff assumed the risk of injury from the hazards that he knew to exist. Jacobs v. Southern Railroad Co., 241 U.S. 229; 60 L. Ed. 970. There is no proof that any of the defendant's apparatus, including the trap platform flooring and the switch post, was not of approved construction, or that the switch post was not suitably placed.
Appellant's second point is that the proximate cause of plaintiff's injury was the negligence ...