The opinion of the court was delivered by
Orel D. Hook sued the Atchison, Topeka & Sаnta Fe ■Railway Company because of injuries received while in its employ as a section hand engaged in the repair of its roadbed. He recovered a judgment, and the defendant appeals.
In the course of track repair work the plaintiff and seven other section hands, including the foreman, were riding east on a section motor car, described by him as a hand car driven by gasoline power.
1. The defendant asserts that there was a variance between the pleading and prоof as to the manner in which the accident occurred, and that it was impossible for the plaintiff to have been thrown from the car in either way. The allegations of the petition were in accordance with the plaintiff’s contention as already stated. The defendant appears to interpret his testimony as meaning that the bar struck him in the back before it fell off the car. His language on direct examination was:
“I do not know how it came to hit me. The first thing I realized I was in front of the car. The bar hit me bеtween the shoulder blades. I couldn’t tell what part of the bar struck me. I felt the contact of the bar with my body. It wasn’t the sharp end of the bar that hit me; it didn’t go into my back. The car ran onto me and injured me.”
On cross-examination he said:
“My first recollection of the accident was that I knew something hit me in the back between the shoulder blades or at the edge of one blade. . . . I glаnced over the right shoulder and something hit me here in the back. It hit me between the shoulders. I knew it was a lining bar because the lining bar fell forward and hit the rail between me and the rаil, after it hit me. ... I didn’t see what caused it to fly up and hit me; it just overbalanced on the end of the car. In hitting me it came from the west; that is, from back*558 here, and tilted over. I know in my own mind what caused it. I didn’t see this bar come up there. The first thing I knew about it was when it hit me. After it hit me it fell down between the rails.”
While the plaintiff did not undertake to say from personal knowledge just what made the end of the bar fly up and hit him, his testimony is consistent with the theory already indicated, which is supported to some extent by the position in which the bar was found, and by a mаrk presumably made by its point in the end of a tie or in the cinders between the tie ends. His testimony was not that the bar hit him before it fell out of the box or off the car, but that after it hit him it fеll forward and hit the rail, or fell between the rails. We cannot say that it was physically impossible for the' falling bar to strike its point against a tie in such a manner as to causе the handle end to rotate swiftly about the point and strike the plaintiff with sufficient force to throw him from the car.
2. The defendant urges that the accident cannot have bеen caused by the overloading or improper loading of the car, or by the failure of the foreman to inspect it after it was loaded. We are unable to sаy that putting too many tools in the shallow boxes or failing to arrange them in stable position may not have been the cause of the bar falling out and thereby the injury being done; nor can we say that it was not the duty of the foreman to see that the tools were properly packed so as not to jolt out of the boxes, although there was no specific evidence of a custom or duty of making such inspection. No such evidence was necessary to show that it was incumbent oh the foreman, as the rеpresentative of the defendant in charge of the workmen, to take all reasonable precautions for their safety.
3. The defendant asserts that the plaintiff is precluded from recovering by the rule of assumed risk. The plaintiff says this question is not in the case because there is nothing to show that at the time of his injury he was engaged in interstate commerce, so that the state statute and not the act of congress applies and assumed risk is not a defense. The petition does not refer to the federal employers’ liability act nor use the term interstate commerce. It does state, however, that the defendant operates a railway through the state of Kаnsas — a fact of which judicial notice would be taken in any event (Patterson v. Railway Co.,
4. The defendant argues that any danger from overloading or improper loading of the car was open to common observation and was as readily to be seen and appreciated by him as by the company, and thereforе that the defense of assumed risk was established. In answer to special questions the jury found that the plaintiff had been employed on this section and with this hand car for about twо years; that he assisted in loading the tools on the hand car; that the position of the tools on the car was “approximately” obvious to anyone who would make' a casual examination; and that there was no positive evidence whether the plaintiff was familiar with the manner in which the tools were loaded on the car рrior to the injury. The finding last stated is complained of as evasive, but no request was made for a more direct answer to the question. Inasmuch as the other answers showed the facts from which an inference concerning the plaintiff’s familiarity with the manner in which the tools were loaded might have been drawn, we do not think the jury’s statement that there was no positive evidence on the subject affords material ground of complaint. In order for the defense of assumed risk to be established it was not enough that the plaintiff knew of the physical facts as they existed; he must have known and appreciated the danger. (Brizendine v. Railroad Co.,
5. The final complaint is that the verdict was excessive. The plaintiff was allowed $1,000 for pain and suffering and $7,000 for “permanent injury.” According to the evidence he suffered a compound fracture, of the right arm above the elbow, the treatment of which left pеrmanent scars. A doctor said: “The probabilities are that he will not have the full and complete use of it as he had be
The judgment is affirmed.