Babcock v. Rutland Railroad

solely on the defective condition of the motor car. The defendant on this appeal does not dispute that the evidence was sufficient to go to the jury on that' question of its negligence.

The main point urged is that the plaintiff assumed the risk of his employment arising from the defective condition of the motor car. In considering this question it must be kept in mind that under the Federal statute the common-law rule as to assumption of risk prevails. (Seaboard Air Line Railway v. Horton, 233 U. S. 492 , 504.) The rule in that case was stated as follows: “ When the employé does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employé assumes the risk, even though it arise out of the master’s breach of duty.” (Italics mine.) So in Boldt v. Pennsylvania R. R. Co. ( 245 U. S. 441 ) the court said: “ At common law the rule is well settled that a servant assumes extraordinary risks incident to his employment or risks caused by the master’s negligence which are obvious or fully known and appreciated by him.” (Italics mine.) -The defendant contends that the complaint should have been dismissed as matter of law because the plaintiff had assumed the risk of his injury. It is argued with much plausibility that he was a railroad man of long experience; that he well knew the defective condition of this car both in its incipiency and in its manifestations after its first derailment down to the time of the accident resulting in his injury and that he had all the knowledge which his foreman possessed or with which the defendant was chargeable. That, however, is only a partial statement of what is involved in' a consideration of whether he assumed the risk. There remains the question as to whether or not he appreciated the. risk involved in the use of the car and the danger reasonably to be apprehended from its use, or to use the language employed in Butler v. Frazee ( 211 U. S. 459 , 467) whether the danger was one “ suggested by the common knowledge which all possess ” and whether “ both the conditions and the dangers are obvious to the common understanding.” Here the conditions were obvious to the plaintiff but it is not so clear that the dangers were obvious. The plaintiff was under the immediate supervision of his foreman, a man of thirty years’ railroad, experience who was personally operating the car. It cannot be said that plaintiff was not entirely justified in placing some reliance on the judgment of his foreman. The latter was present and in charge of the work when the car was first derailed four months before the accident in question. It was imperfectly repaired by the crew under his supervision.

Under his supervision it had been in constant use for four months in the condition in which it was at the time of the accident. At that time eight men beside himself and the plaintiff were riding thereto. It cannot consistently be said under those circumstances that the danger was one “ suggested by the common knowledge which all ” possessed. It would be a violent assumption to say as a matter of law that these ten men as well as others who had used the car during the preceding four months were all cognizant of the danger which existed in the possibility that the car might jump the track. ' Furthermore the foreman as a witness for the defendant testified that he did not know what caused the car to leave the track. If he with his thirty years’ experience could not explain the accident after its occurrence we can hardly say as matter of law that the plaintiff should have anticipated the accident before its occurrence. We conclude that on the entire evidence the question of assumption of risk was one for the determination of the jury.

The main charge of the court on the question of assumption of risk was as follows: “ He did assume certain risks, but he assumed only those risks which were incident to the employment when those by whom he was employed, the defendant in this case, had exercised that care and prudence which a reasonably prudent man should have exercised under the circumstances in furnishing the car and the track, and having them in a condition which would bring safety to those who were using them. The assumption of risk on the part of the plaintiff when he entered the employ of the defendant does not mean that he assumed all risks. He did not assume risks where the defendant itself had neglected to do its duty in providing a safe place for him to work and safe machinery or safe appliances.” That as we have seen was an erroneous statement of the law under the Federal statute. Under that statute a risk arising from the master’s negligence might be assumed by the plaintiff. The defendant excepted and requested the court to charge the jury as follows: “ I ask your Honor to charge that the plaintiff under the Federal Employers’ Liability Law does assume all risks of his employment which are known to him, or which could have been known by the exercise of ordinary care by a person of reasonable prudence and diligence in like circumstances, and that he also assumes risks not naturally incident to the occupation, but which arise from the negligence of the master when he becomes aware of such negligence, and the risks arising therefrom, when such negligence and the risks that arise therefrom are apparent and obvious, and that an ordinarily careful person would observe the one and appreciate the other.” To this

request the court responded: “If I understand the request I charge it, but say to you, gentlemen of the jury, that the plaintiff did not assume, the risks coming from the negligence of the defendant, the defendant’s wrongful or careless act. The plaintiff is not responsible for those.” Here the error was repeated. It is quite likely that the court subsequently at the request of defendant charged that the risk of an accident due to the negligence of the defendant might be assumed by the plaintiff. But we are constrained to believe that the erroneous notion previously conveyed to the minds of the jury was not thereby eradicated. The subsequent charge was involved in a long and complicated proposition. There was no retraction of the former error twice repeated in clear and unambiguous language. From the entire charge it is more than probable that the jury entered upon their deliberations with an erroneous idea of the law on the question of assumption of risk. That question was a very important feature of the defense. It was the right of the defendant to have the jury receive lucid and accurate instructions in respect thereto and we are of the opinion that they rendered their verdict under an erroneous conception of the law bearing on this branch of the case.

For this reason the judgment and order, should be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event.

All concur.

Judgment and order reversed on the law and facts and new trial granted, with costs to the appellant to abide the event.