126 F. 141 | 8th Cir. | 1903
Lead Opinion
Ered Brown, the defendant in error, brought this action in the lower court against the Musser-Sauntry Eand, Dogging & Manufacturing Company, the plaintiff in error, for personal injuries which he claimed to have sustained while in its
At the conclusion of all of the evidence the defendant company, through its counsel, moved the court to direct a verdict in its favor, which the trial court declined to do. The case was thereupon submitted to the jury, and resulted in a verdict for $6,600. To reverse the judgment that was subsequently entered upon this verdict the defendant below has brought the case to this court on a writ of error.
Counsel for the plaintiff in error urge a reversal of the judgment below for several reasons, but, according to the view which we have felt compelled to take of the case, it will only be necessary to con-> sider one question, and that is whether the plaintiff below, on the un
To sustain the judgment below counsel invoke the rule of law, which is now well settled, namely, that when a servant discovers a
For the reasons thus indicated, we are of opinion that the trial court should have directed a verdict for the defendant, as it was requested to do. The judgment below is accordingly reversed.
Concurrence Opinion
(concurring).
We concur in the judgment of reversal in this case on the grounds stated in the opinion of the court, and also upon the further grounds that the defect in the handle of the ax which the plaintiff was using was obvious and well known to him, that the danger from it was apparent and was appreciated by him, and that by continuing in the employment with this knowledge and appreciation he assumed the risk of the defects and dangers from which he suffered. Lamson v. American Axe & Tool Co., 177 Mass. 144, 58 N. E. 585, 83 Am. St. Rep. 267; King v. Morgan, 109 Fed. 446, 448, 48 C. C. A. 507, 509; Cudahy Packing Co. v. Marcan, 45 C. C. A. 515, 517, 106 Fed. 645, 647, 54 L. R. A. 258; Smith v. Beaudry, 175 Mass. 286, 289, 290, 291, 56 N. E, 596.