95 Minn. 212 | Minn. | 1905
The plaintiff and respondent in this case brought an action against the defendant and appellant to recover for personal injuries. The defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. From an order overruling the demurrer, the defendant appealed.
The first'ground of negligence in the complaint sets forth that the defendant negligently ordered ten of its sectionmen, including this plaintiff, to get upon a hand car with a capacity of carrying not to exceed six men at a time, and that, because of this crowding, the plaintiff was thrown from the car and injured.
The defendant contends that this complaint shows that the plaintiff —a full-grown man, working as a sectionman at this time and place for a long time — assumed the risk of the overcrowded condition of the car, in accordance with the familiar rules of law on the assumption of apparent risks. The danger, the contention is, was as obvious to one man of common sense as another; the plaintiff might forget the danger, but that was one of the things, the risk of which he assumed. Bengston v. Chicago, St. P., M. & O. Ry. Co., 47 Minn. 486, 50 N. W. 531.
In the case at bar, however, it is expressly alleged
That the plaintiff had no knowledge of the capacity of said hand car, and had prior to said time no opportunity for knowing its capacity.
It could not reasonably be held upon this demurrer, admitting this fact as to the absence of knowledge and of opportunity for knowledge to be true, that the plaintiff, as a matter of law, assumed the risk. This conclusion renders it unnecessary to consider the other allegations of negligence set forth in the pleading.
Order appealed from is affirmed.