McAdoo v. Anzellotti

271 F. 268 | 2d Cir. | 1921

HOUGH, Circuit Judge

(after stating the facts as above). ' To trace

the origin of the rule of assumption of risk, to do the same for that of contributory negligence, and compare and reconcile the decisions thereunder may be interesting or impossible (18 R. C. L. pp. 639 et seq., 693 et seq.) ; but neither for the trial court nor this court is the inquiry profitable, because both courts are bound by decisions of long standing and ruling authority. Risk assumption and contributory negligence are things “quite apart” and separately to be considered. Choctaw, etc., Co. v. McDade, 191 U. S. 64, 68, 24 Sup. Ct. 24, 48 L. Ed. 96; Lauria v. Du Pont, etc., Co., 250 Fed. 353, 356, 162 C. C. A. 4-23.

The distinction between the two has been stated with acuteness by Sanborn, C. J., in St. Louis Cordage Co. v. Miller, 126 Fed. 495, 502, 61 C. C. A. 477, 63 L. R. A. 551, and is said to be briefly this—-that assumption of risk rests in contract and contributory negligence in tort. This decision and distinction is repeated in Chicago, etc., Co. v. Crotty, 141 Fed. 913, 916, 73 C. C. A. 147, 4 L. R. A. (N. S.) 832, in an opinion by Justice Van Devanter when Circuit Judge, and it was followed in another circuit in Chicago, etc., Co. v. Ponn, 191 Fed. 682, 688, 112 C. C. A. 228.

[1'| Whether the definition attempted in the St. Louis Cordage Co. Case is the last word or not, the rule that the two things are two things and not identical has never been departed from in the subsequent decisions of the Supreme Court; e. g., Schlemmer v. Buffalo, etc., Ry., 220 U. S. 590, 31 Sup. Ct. 561, 55 L. Ed. 596: Seaboard Air Line v. Horton, 239 U. S. 595, 36 Sup. Ct. 180, 60 L. Ed. 458; Erie Railroad v. Purncker, 244 U. S. 320, 37 Sup. Ct. 629, 61 L. Ed. 1166; Boldt v. Pennsylvania, etc., Co., 245 U. S. 441, 38 Sup. Ct. 139, 62 L. Ed. 385. It must be accepted as fixed Law that, while the servant is not obliged to pass judgment upon his 'master’s method of transacting his own business, and may assume that reasonable care will be used in furnishing a safe place to work and the appliances necessary for the work, it is just as true that, where a defect is known to the employee, or is so patent as to be readily observed by him, he cannot continue to work in the unsafe place or use the defective apparatus, in the face of knowledge and without objection, without assuming the hazard incident to such a situation. The test is not in the exercise of care to discover the danger, but whether the defect or danger was known to or plainly observable by the workman.

This rule has been fully accepted and expressed in this court. General Lighterage Co. v. Hansen, 228 Fed. 497, 143 C. C. A. 79; Delaware, etc., Co. v. Busse, 263 Fed. 516; Delaware, etc., Co. v. Tomasco, 256 Fed. 14, 167 C. C. A. 286; and the Lauria Case, supra. It is in the first instance for the court to say whether the facts proven do or do not present a case of assumption of risk. That case may be so plain as to require a direction at the hands of the court in favor of the defendant master, or it may present circumstances concerning which fair-minded and intelligent men may differ, in which event there is a question for the jury; but it cannot be identified with contributory negligence and so disposed of, as was here done.

[2] Since this writ was taken, the Supreme Court has twice emphasized the importance and independence of the defense of assumption of risk under the federal Employers’ Liability Act. Southern Pacific Co. v. Berkshire, 254 U. S. 415, 41 Sup. Ct. 162, 65 L. Ed. - (Jan. 3, 1921); Pryor v. Williams, 254 U. S. 43, 41 Sup. Ct. 36, 65 L. Ed.--(Nov. 8, 1920). The Berkshire Case is an extreme example of imputed knowledge on the part of the workman. The risk held to be assumed was one of many “mail cranes” standing so near the railway track on which the decedent operated an engine that he was killed, evidently by leaning out of his cab and striking the crane. It was admitted that there was “no evidence whatever” that decedent “actually knew that the crane arm extended close enough to the track to cause the injury.” Yet it was held as so clear that decedent must have known of this danger that to “allow the jury to find a verdict for the plaintiff was to allow them to substitute sympathy for evidence and to impose a standard of conduct that had no warrant in the common law.”

While we think that the danger in this case was patent, it is proven that it was known, and long had been known, to plaintiff below. That it was a danger did not require the teaching of the event; therefore it was a present risk, and therefore it was assumed.

While on this record we are of opinion that a verdict should have been directed for the defendant, our holding goes no further than that the refusal of the court to act in any way iipon the requests of the defendant was error, and requires a new trial, which is granted, with costs to the plaintiff in error.