[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 268 We are of the opinion that this case cannot be distinguished from the case of Gibson v. The Erie Railway Company (63 N.Y. 449), and must be controlled by it.
In that case this court held that, having accepted service, with knowledge of the character and position of structures from which he might be liable to injury, the plaintiff could not call upon the defendant to make alterations to secure greater safety, or, in case of injury from risks which were apparent, he could not call upon his employer for indemnity.
In the present case the yard, in which the deceased worked, was drained by a system of small, open ditches or sluices, running across the tracks, between the ties. The sluices were in existence long before deceased went into the employment of the defendant, and so remained without change or alteration throughout the time of his service. There were many of them, all constructed substantially alike, and all in plain sight. He had been engaged as switchman and car coupler in the yard in question for nearly two years. He worked in the day-time. It appears that every one of these ditches or sluices were well known to him; he knew their location and, so far as could be determined by seeing them daily, he knew their width and depth, and the manner of their construction. Whatever there was of danger to one engaged in the coupling of cars in this yard must have been apparent and obvious to him. This is not a case, therefore, of a latent or secret danger unknown to the servant, but which should have been known to the master. *Page 269
We do not see how the defendant can be held liable in this case, without abolishing the well-established rule that the servant, by accepting the employment, assumes the risks and perils incident thereto, so far as they are apparent and obvious.
The memorandum of the case of Plank v. N.Y.C.R.R. Co. (60 N.Y. 607), upon which the learned judge relied at the Circuit, it is true states that the deceased knew of the existence of the ditch. This was founded upon, and perhaps justified by a statement in the per curiam opinion in that case, as follows: "He had been two months in the service of the defendant, and every week, probably, upon this turn-out on his avocations. He must have known of the existence of the trench," and the court held that under the peculiar circumstances of that case, while the fact that the deceased knew of the existence of the ditch, "though an important fact, is not a preponderating one," on the question of contributory negligence. The question here presented was not under consideration. We have examined the record on which the case was heard in this court, and it does not appear, nor was it contended by the counsel for the defense, that the deceased had actual present knowledge of the existence of the ditch. The plaintiff was nonsuited at the Circuit. The nonsuit was set aside by the General Term, and the defendant appealed to this court, giving the usual stipulation.
The decision in that case is not in conflict with the rule established in the case of Gibson v. The Erie Railway Company (supra).
The judgment of the General Term should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 270