197 F. 94 | W.D. Tenn. | 1912
This case is before me upon a motion for a new trial. Twenty-four grounds are assigned as a basis for the motion. All of them may be overruled without comment, except the eighth, which was the court’s refusal to submit to the jury the question of the assumption of risk.
The case was heard and submitted to the jury under the federal Employers’ Liability Act. As far as need be quoted here, that act provides;
“That every common carrier by railroad while engaging in commerce between any of the several states and territories * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employ®, to his or her personal representative, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. * * * That * * * the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the' amount of negligence attributable to such employé: Provided, that no such employé * * * shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé. That * * * such employé shall not be held to have as*96 sumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employé.” Chapter 149, 35 IT. S. Statutes at Large, pt. 1.
_ The facts are that the defendant left a cut of cars standing on a side track at Gwyn, Miss.’, not “in the clear” of a lead track. The deceased engineer was proceeding along the lead track with, his engine and train, and had approached so close to the cut of cars before he attempted to stop his train that, when he discovered that he could not clear it, he was then unable to stop his engine,-and it collided with the cut of cars, resulting in his- death.
The specific question raised by the assignment is whether or not the deceased engineer, while running his engine into the yards of the defendant at Gwyn, Miss., assumed, by his contract of employment, the risk and danger incident to the negligently leaving by the defendant of a- cut of cars not “in the clear” of the track on1 which the deceased’s engine was moving.
Nor is there room for doubt that the negligently placing and leaving of this cut of cars at the point where the evidence shows it was left caused or proximately contributed to the death of the- deceased, hence the defendant, being engaged in interstate commerce, is liable under the Employers’ Liability Act, unless it may escape liability under the doctrine of assumption of risk. Before the passage of the act above quoted, one of the defenses in cases of this character was contributory negligence. The act of Congress abolished that defense as a bar to the right of recovery, and provides that the negligence of the servant shall go in reduction of damages. If the contention that the doctrine of assumed risk is available as a defense in this case, as is so ably insisted, then it would seem that the purpose of the act would be defeated.
“While * * assumption of risk sometimes shades into negligence as commonly understood, there is, nevertheless, a practical and clear distinction between the two. In the absence of statute taking away the defense, or such obvious dangers that no ordinarily prudent person would incur them, an employé is held to assume the risk of the ordinary dangers of the*97 occupation into which he is about to enter, and also those risks and dangers which are known, or are .so plainly observable that the employs riiáy be presumed to knew of them, and, if he continues in the master’s employ without objection, he takes upon himself the risk of injury from such defects. * * * Contributory negligence, on the other hand, is the omission of the employé to use those precautions for his own safety which ordinary, prudence requires.”
It is conceded that the common-law rule that contributory negligence barred the right of recovery has been abolished by the act. Shall the courts destroy the effect of the act in this particular by holding that common carriers are not liable to their servants for injury or death inflicted as a result of the negligence of their dfficers, agents, or employés, upon the ground that the" servant assumes the risk incident to the negligence of the officers, agents, or employés of the carrier? In view of the first section of the act, which provides that such common carrier shall be liable in damages to its employe, resulting in whole or in part from the negligence of any of its officers, agents, or employés, it is not permissible, in my judgment, to hold that the employé assumes the risk of his employment which arises froin the negligence of the officers, agents, or employés of the carrier. It is insisted that since the act provides that he shall riot be held to have assumed such risk in cases only where the violation* by the common carrier of any statute enacted for the safety of employés contributed to the injury, the maxim, “Expressio unius est exclusio altefius,” applies. I do not think this insistence is sound, or that it should be sustained. ,
As I construe the act, the risk that the employé now -assumes: is the ordinary dangers incident to his employment, which . does not in-
The court therefore declined to instruct the jury on the law of the assumption of risk.
Motion for new trial denied.