60 F. 553 | 5th Cir. | 1894
On the assignment of errors in this case, .the only question to be considered is whether it was proper for the trial court to instruct the jury to find for the. defendant, or whether the case should have been left to the jury. It is well settled by the decisions of the United States supreme court that “a case should not be withdrawn from the jury unless the conclusion follows, as a matter of law, that no recovery can be had, upon any view which can be properly taken of the facts the evidence tends to establish.” Railway Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905; Gardner v. Railroad Co., 14 Sup. Ct. 140. And it is equally well settled that, where the undisputed facts of a case are such that all reasonable men must draw the same conclusion from- them, the trial court is justified in withdrawing the case from the jury. Are the undisputed facts in this case such that the court below was justified in withdrawing the case from the jury? Are they such that all reasonable men must draw the conclusion that the plaintiff assumed and exposed himself to obvious risks and dangers in the. work in which he was engaged at the time he was injured? The general rule is that one who engages in an employment of a hazardous nature assumes the risks and dangers incident thereto; but increased risks and dangers, caused by negligence on the part of the employer, are not deemed to be incident to the business, within the meaning of the rule.' A duty rests upon the employer which requires him to exercise due care on his part that no risks and hazards to those in his employ shall be unnecessarily increased. When he performs this duty, in view of the particular employment, then the risks and dangers pertaining thereto are assumed by the employe. Gardner v. Railroad Co., supra.
The facts of this case are, in substance: That the plaintiff was in the employ of the defendant as day watchman at defendant’s roundhouse. His principal duty was to watch the premises, but was to obey all orders given him by the foreman, whatever they might be, in regard to any work about the premises. That it was customary, and the duty of all employes, when ordered to do so, to assist in moving “dead” engines into the roundhouse for repairs, and that plaintiff was called out by the foreman to assist in such work' on the occasion of his unfortunate injury. A dead engine is described as one without steam, or power to move itself. Plaintiff was injured while assisting in moving a dead engine onto a turntable for the purpose of placing it in the roundhouse for repairs. Certain tracks of defendant’s railway converged to the turntable, or-diverged therefrom. Over one of these convergent tracks, plaintiff was ordered to assist in pushing said dead engine onto the turntable. A short while before this, another engine of the defendant had been removed from the turntable onto one of the divergent ■tracks, to allow room for the dead engine to get onto the turntable, and was left standing a few feet therefrom. While engaged in pushing the dead engine, the plaintiff was caught .between it and