I concur in the result reached by my Brother Hooker.
*208Montgomery, C. J.Having determined that there was evidence for the jury that defendant had failed to comply with the terms of the statute, and that there was also testimony tending to show that the custom of the company permitted deceased to occupy the position he did relative to the moving car, the question is presented whether the circumstances were such as to show, in and of themselves, that the deceased was guilty of contributory negligence as a matter of law. There was testimony tending to show that a person could not see whether the blocking was safe until he was right up to it. One witness testified, “As to looking at that blocking in passing-over it, it didn’t look like a block in which one’s foot would be caughtand he further testified that ‘ ‘ you would have to get right up to it in order to see whether or not your foot would catch in there if you stepped on it.”' Assuming this to be true, can we say, as a matter of law, that the failure to detect this defect when deceased approached the frog was negligent? It is to be kept in mind that the statutory duty of the company was to so adjust, fill, or block frogs as .to prevent employ és and others from getting their feet caught therein. Was it negligent to assume that" such duty had been performed, and that the frog was no longer the place of danger which it had formerly been ? To so hold is to emasculate the law, or, at least, to relieve the company from any responsibility for injuries occurring in daylight; for a case is not likely to arise in which it can be shown that a careful and minute inspection of the frog would not reveal the defect, if any, in the blocking.
But this is not the -only result of holding that, such a defect being open to discovery by close inspection, the, injured party must be held to have taken the risk. Analogous situations are likely to arise in a multitude of cases. To illustrate: The highway law requires that streets should be kept in reasonable repair. Suppose a defect in the way, of which the pedestrian had no previous knowledge, but which he might have seen had his atten*209tion been directed to the precise point at tbe precise time he approached it; are we prepared to say, as a matter of law, that one who receives an injury at such a place is guilty of contributory negligence ? Such is not the law. Pettengill v. City of Yonkers, 116 N. Y. 558 (22 N. E. 1095, 15 Am. St. Rep. 442); Beach, Contrib. Neg. § 246a.
In this case the deceased was not in a situation which admitted of his giving his undivided attention to the track. He was under the necessity of watching the approaching car. This he was as much bound to do as he was to note the ground he was walking over. Indeed, the duty was more imperative, for the approaching car was a known danger; a frog so blocked “as to prevent employes getting their feet caught therein ” was no danger at all. This is the only character of frog that deceased had notice of, as matter of law, and I think it cannot be said that he was guilty of negligence in not discovering the breach of duty by defendant. I have no criticism to pass upon the holdings in the cases cited, in which an employe is held to have assumed the risk of defective blocking, where it appears that he knew of the fact in advance. This record does not present such a case.
The judgment should be affirmed.
Moore and Long, JJ., concurred with Montgomery, C. J.