89 N.J.L. 691 | N.J. | 1916
The opinion of the court was delivered by
This is an appeal from a judgment of nonsuit, granted by Judge Speer, in the Hudson Circuit Court.
The action was brought under the Federal Employers’ Liability act. On January 17th, 1916, the plaintifl-appellant was in the employ of the defendant-respondent, cutting steel rails and repairing its tracks, at Johnson avenue, Jersey City.
While the appellant was at work be was called by the foreman to come where tlie other men were working “to drop a rail down and cut it.” Four men were handling this rail at that time when the plaintiff came to where these four men were. Before he had an opportunity to touch the rail, or had anything to do with it, the men dropped the rail and broke it, where they had first cut it with a chisel. The purpose of dropping it was to break it where it had been cut. The rail weighed six hundred and forty-eight pounds, twenty-Compounds to the foot, twenty-seven feet long. The plaintiff did not reach there in time to assist the men in handling the rail.
The appellant testified that he had seen men handle the same kind of rails—the same number of men handle them
The ruling of the trial judge rested on the ground that the plaintiff assumed the risk, the presence of which he realized at the time, and acknowledged in his testimony at the trial. We think this ruling of the trial judge was not error.
The principle applied by the trial judge in this ease is one of the fundamental principles in the law of negligence, applied and illustrated in many reported cases. It was recognized and applied by the United States Supreme Court, in the case of Seaboard Air Line Railway Co. v. Horton, 233 U. S. 492, 504, where the distinction between contributory negligence and assumption of risk is pointed out. Contributory negligence involves the notion of some fault or breach of duty on the part of the employe. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employe. The risk may be present, notwithstanding the exercise of all reasonable care on his part. See, also, Toledo, &c., Railroad Co. v. Slavin, 236 U. S. 454.
In our courts Mr. Justice Dixon states the rule with clearness thus: An employe assumes the risk of such dangers attending the prosecution of his work, as be would discover by the exercise of ordinary care for his personal safety, and that, for hurt happening to him from those dangers, the employer is not responsible. Atha, &c., Co. v. Costello, 63 N. J. L. 27. To the same effect, in this court, are the cases of Dillenberger v. Weingartner, 64 Id. 292; Christensen v. Lambert, 67 Id. 341. In those eases, the dangers were known to the employe,
Finding no error in the record, the judgment of nonsuit is affirmed.
For affirmance—The Chancellor, Chief Justice, Garrison, Swayke, Trencitard, Bergen, Minturn, Kalisoh, Blaotc, White, Heppenhkimer, Williams, Gardner, JJ. 13.
For reversal—Parker, J. 1.