159 Ky. 687 | Ky. Ct. App. | 1914
Lead Opinion
Opinion of the Court by
— Affirming.
In this action for damages for personal injuries against defendant, the Chesapeake & Ohio Railway Company, plaintiff, John DeAtley, recovered a verdict and judgment for $9,050. The railroad company appeals.
According to the evidence for plaintiff, he entered defendant’s service as brakeman on December 10, 1910. At that time he was 19 years of age. Prior to that time he had made two trips as brakeman between Covington .and Russell for the purpose of becoming acquainted with
Por defendant the engineer testified in substance as follows: When the train left Springdale plaintiff went forward to throw the switch on to the main track. Then he requested plaintiff to call up the operator at P. G. Cabin and find out how train No. 1 was running. When the train reached the coal docks, it was stopped for coal and water. He did not at any time direct plaintiff to go to the tower, and did not know that he had gone there. Supposed that plaintiff had gone back to look over the train, as it was his duty to do. When he finished coaling his engine he called in the rear flagman with the usual
By instruction No. 1 the court told the jury in substance that if defendant’s engineer directed plaintiff to go to defendant’s tower, or knew that plaintiff was at the tower on business connected with the operation of
The court refused to give the following instruction, offered by the defendant:
‘ ‘ The court instructs the jury that when the plaintiff, «L J. DeAtley, entered the service of the defendant railroad company, as brakeman, he assumed all the ordinary risks and hazards of that employment or occupation; and if they should believe from the evidence that the plaintiff’s injuries complained of were the natural and direct results of any of said risks, then they must find for the defendant.”
(1) It is first insisted that the evidence fails to show that the speed of the train was the proximate cause of plaintiff’s injury. In this connection it is insisted that plaintiff’s own evidence discloses the fact that his foot slipped off the step, and he was then, thrown loose by his weight and the speed of the train. We think, however, it was for the jury to say whether or not the speed of the train was the cause of plaintiff’s injuries; for his foot might not have slipped, or his hold on the grab-iron have been loosened, had it not been for the speed of the train. '
(2) 'The principal error relied on is the failure of the court to give the requested instruction on assumed risk, though this defense was pleaded by the company.
It is conceded that the defendant company was engaged,- and plaintiff was employed, in interstate commerce at the time of the injury. Therefore, the Federal Employers’ Liability Act controls. The case is not predicated on a violation of any statute enacted by Congress for the safety of employees. That being true, the com
“It seems to us that Sec. 4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as" a complete bar to the action. And, taking Sections 3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk; for, while it is declared that neither of these shall avail the carrier in cases where the violation' of a statute has contributed to the injury or death of the employe, there is, with respect to cases not in this category, a limitation upon the effect that is to be given to contributory negligence, while no corresponding- limitation is imposed upon the defense of assumption of risk— perhaps none was deemed feasible.”
The distinction between assumed risk and contributory negligence is not only recognized by the Federal Employers’ Liability Act, but by the Federal and other courts of this country. Choctaw, &c. R. Co. v. McDade, 191 U. S. 64, 48 L. Ed. 96; B. & O. Ry. Co. v. Baugh, 149 U. S. 368; St. Louis Cordage Co. v. Miller (C. C. A.), 126 Fed., 495. In brief, the distinction is as follows: Assumption of risk rests upon the -intelligent acquiescence and knowledge of the danger and appreciation of the risk naturally incident to the employment or arising from a particular situation in which the work is done. It negatives the prima facie liability of the master, and does not involve the aggravation or creation of the peril by misconduct of the servant. On the other hand, contribu- • tory negligence rests on the breach of duty to exercise ordinary care. It displaces the prima facie liability of the master, adds a new danger to the situation not necessarily incident to the work, and is imposed by law upon the servant, however unwilling or protesting he may be. Though some authorities hold that assumption of risk is not based upon contract, it is generally held to grow out of the contract of employment, and of the application of the maxim volenti non fit injuria. The test of knowledge of danger is not the exercise of ordinary care to discover the danger, but whether the danger was. known to or plainly observable by the employee. The test of appre
“The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employe, and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory, negligence is sometimes defined, as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use. 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 employee. The risks may be present, notwithstanding the exercise of all reasonable care on his part.”
The distinction between ássumed risk and contributory negligence is of great importance in cases arising under the Federal Employers’ Liability Act; for assumed risk bars a recovery, while contributory negligence merely diminishes the amount of recovery.
The risks which a servant assumes may logically be divided into two classes: (1) Those which are not created by the master’s negligence, or the ordinary risks of the service; and (2) those which are created by the master’s negligence, or the extraordinary risks. Choctaw, O. & G. R. Co. v. Jones, 77 Ark., 367, 4 L. R. A. (N. S.) 837. The ordinary risks are those which are ordinarily and usually incident to the service in which the employee is engaged; thus, the employee assumes the risk of injury from simple tools; a brakeman assumes the risk of injury from the usual and necessary jerks attending the prudent operation of. a train; and, unless otherwise provided by statute, he assumes the risk of dangers arising from the negligence of a fellow servant.
Judgment affirmed.
Dissenting Opinion
dissenting.
Dissent by Judge Carroll: “I dissent from this opinion because I think an instruction on the subject of assumed risk should have been given.”