No. 1,765 | 9th Cir. | Feb 14, 1910
(after stating the facts as above). The defendant assigns as error the refusal of the'court to grant its motion for a directed verdict for want of testimony to justify a verdict in favor of the plaintiff, and contends' there was failure of proof of negligence op its part in any respect. It argues that the platform was of ample size for switching purposes, that lights were provided sufficient to light the switch stand, and that it was the duty of the conductor to mover up his train after coupling onto the meat cars and before stepping from the motor to turn the switch. On considering the whole testimony, we are of the opinion-that the court below did not err in submitting the question of the defendant’s negligence to the jury. The platform had recently been extended southward, but it had not been carried so far as to extend alongside the rear end of a motor standing on the wye when in a position to be clear of the main track. If it had been extended 15 feet farther than it was, it would have been made perfectly safe. • Again, it would seem that the south end of the platform should have been lighted, and that the unguarded plank, which was calculated to deceive an employé, should not have been left upon the '.bents by the side of the track. There was no evidence that it was there for any useful purpose. Its presence there was not explained. It is quite conceivable that an employé who had not been switching at the wye since the extension of the platform, and who had no knowledge of the presence of the plank, and who had no light for his guidance except the dim light furnished by a signal lantern, might have been misled into taking it for the platform. In Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612, the court said that a railroad company was under obligation “to provide and maintain in suitable condition the
Nor do we think the case should have been taken from the jury on the ground that the plaintiff assumed the risk of the injury which he received, or that there was error in giving or refusing instructions to the jury on that subject. Of course, it is a matter of common knowledge that there is always more or less personal risk in the occupation of a railroad employé. In accepting his employment, the plaintiff assumed all the ordinary and usual risks incident thereto, not only those which he knew, but those which he might, in the exercise of reasonable care, have discerned. But he assumed such risks with the recognized qualifications, one of which is that the employer shall use usual care to obviate or at least minimize the danger, and he did not assume the risk of latent defects, notwithstanding that his opportunity of discovering them was the same as that of his employer. He did not assume the risks arising from his employer’s negligence, which were not incidental to the business, when he had no actual knowledge of the same. Union Pacific Ry. Co. v. O’Brien, 161 U.S. 451" court="SCOTUS" date_filed="1896-03-09" href="https://app.midpage.ai/document/union-pacific-railway-co-v-obrien-94397?utm_source=webapp" opinion_id="94397">161 U. S. 451, 16 Sup. Ct. 618, 40 L. Ed. 766; Texas & Pacific Ry. Co. v. Archibald, 170 U.S. 665" court="SCOTUS" date_filed="1898-05-23" href="https://app.midpage.ai/document/texas--pacific-railway-co-v-archibald-94891?utm_source=webapp" opinion_id="94891">170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188" court="SCOTUS" date_filed="1898-05-23" href="https://app.midpage.ai/document/texas--pacific-railway-co-v-archibald-94891?utm_source=webapp" opinion_id="94891">42 L. Ed. 1188.
Taking all the evidence into consideration, we are not convinced that the facts were such as to call for any instruction other than that which was given upon the subject of assumption of risk. The argument advanced in this connection might more properly be addressed to the defense of contributory negligence, negligence on the part of the plaintiff in not causing the motor to be moved up to the switch stand, where there was ample light, before getting off the car to turn the switch, and in not exercising more care to know that the platform was beneath him before he stepped off upon the unguarded plank. The court gave the following instruction:
‘'Assumption of risk means that one who enters a dangerous employment 'assumes the hazards which attend that employment, which ordinary foresight and reasonable prudence cannot anticípale, and yet are likely to occur.’'
But the defendant asked the court to charge the jury that the plaintiff assumed the risk of working with the aid of the artificial light furnished by his lantern, and that it was his duty to exercise care commensurate with the circumstances; that it “was his duty to use his lantern in such a way as was necessary to protect him under the circumstances.” The instruction so requested goes further than the just rule-in regard to assumption of risk. To have thus instructed the jury would have been to say, in effect, that the plaintiff was bound to exercise such care as to make an accident impossible. Such is not the law. He was bound only to exercise reasonable care.
While the question whether there should have been an instructed verdict on the ground of the plaintiff’s contributory negligence is not free from doubt, we are not convinced, in view of the evidence, that
The judgment is affirmed.