165 Wis. 57 | Wis. | 1917
Plaintiff being at the time of the accident engaged in the repair of cars employed solely in interstate commerce, his rights must be determined in accordance' with the laws of the United States, and not of this state, or of the state of Minnesota in which the accident occurred. Under the laws of the United States assumption of risk is still a defense to an action for personal injuries. Having under consideration the Safety Appliance Act, the supreme court of the United States has held:
“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 secs. 3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk. . . . The as*59 sumption 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. . . . And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not.” Seaboard A. L. R. Co. v. Horton, 233 U. S. 492, 503, 504, 34 Sup. Ct. 635.
One of the grounds upon which the trial court granted defendant’s motion for judgment notwithstanding the verdict was that in the opinion of the trial court the plaintiff assumed the risk. It must be remembered that the statutes of this state have no application to the case. It is the duty of this court to sustain the judgment of the trial court unless it can be said- upon the whole record that the trial court was clearly wrong. Without attempting to state the evidence in detail, we will say that we have carefully examined it, and from that examination we are of the opinion that the trial court was justified in its determination that plaintiff assumed the risks incident to the employment; at least it cannot be said that the trial court was -clearly wrong in so finding. The judgment of the trial court was therefore right and should be affirmed. . ,
By the Qourt. — Judgment affirmed.
