The Federal Employers' Liability Act places a co-employee's
negligence, when the ground of the action, in the same relation as
that of the employer as regards assumption of risk. P.
252 U. S.
22.
It is inaccurate to charge without qualification that a servant
does not assume a risk created by his master's negligence, the rule
being otherwise where the negligence and danger are so obvious that
an ordinarily careful person, under the circumstances, would
observe and appreciate them. P.
252 U. S.
21.
But the defense of assumed risk is inapplicable when the injury
arises from a single act of negligence creating a sudden emergency
without warning to the servant or opportunity to judge of the
resulting danger. P.
252 U. S.
22.
Where a switchman, when about to apply the brake to stop a "cut"
of freight cars, was thrown to the ground by a jerk due to delay in
uncoupling them from a propelling engine when the engine was
slowed,
held that he had a right to assume that they would
be uncoupled at
Page 252 U. S. 19
the proper time, as usual, and did not assume the risk of a
co-employee's negligent failure to do so.
Id.
The error of a charge that contributory negligence will prevent
recovery in an action under the Federal Liability Act, being
favorable to defendants, does not require reversal of a judgment
against them. P.
252 U. S. 23.
The Seventh Amendment does not forbid a jury of less than twelve
in a case under the Federal Employers' Liability Act tried in a
state court.
Id. St. Louis & San Francisco R. Co.
v. Brown, 241 U. S. 223.
68 Okla. ___ affirmed.
The case is stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
Suit was brought in the Superior Court, Pottawatomie County,
Oklahoma, against the Chicago, Rock Island & Pacific Railway
Company and A. J. Carney to recover damages for injuries alleged to
have been received by Ward while he was employed as a switchman of
the railway company in its yards at Shawnee. He recovered a
judgment which was affirmed by the Supreme Court of Oklahoma, 68
Okla. ___. The ground upon which recovery was sought against the
railway company and Carney, who was an engine foreman, was that
Ward, while engaged in his duty as a switchman, was suddenly thrown
from the top of a box car upon which he was about to apply a brake.
The petition alleged, and the testimony tended to show, that Ward
was engaged as a switchman
Page 252 U. S. 20
on a cut of cars which it was the duty of the engine foreman to
cut loose from the engine pushing the cars in order that Ward might
gradually stop the cars by applying the brake. It appears that, at
the time of the injury to Ward, the cut of cars had been pushed up
an incline by the engine, over an elevation, and, as the cars ran
down the track, the effect was to cause the slack to run out
between them permitting them to pull apart sufficiently to be
uncoupled, at which time it was the duty of the engine foreman to
uncouple the cars. The testimony tended to support the allegations
of the petition as to the negligent manner in which this operation
was performed at the time of the injury, showing the failure of the
engine foreman to properly cut off the cars at the time he directed
the engineer to retard the speed of the engine, thereby causing
them to slow down in such manner that, when the check reached the
car upon which Ward was about to set the brake, he was suddenly
thrown from the top of the car with, the resulting injuries for
which he brought this action.
The railway company and Carney took issue upon the allegations
of the petition, and set up contributory negligence and assumption
of risk as defenses. The trial court left the question of
negligence on the part of the company and the engine foreman to the
jury, and also instructed it as to assumption of risk by an
employee of the ordinary hazards of the work in which he was
engaged, and further charged the jury as follows:
"You are further instructed that, while a servant does not
assume the extraordinary and unusual risks of the employment, yet,
on accepting employment, he does assume all the ordinary and usual
risks and perils incident thereto, whether it be dangerous or
otherwise, and also all risks which he knows or should, in the
exercise of reasonable care, know to exist. He does not, however,
assume such risks as are created by the master's negligence, nor
such as are latent or are only discoverable at
Page 252 U. S. 21
the time of the injury. The doctrine of an assumption of risk is
wholly dependent upon the servant's knowledge, actual or
constructive, of the dangers incident to his employment. Where he
knew or, in the exercise of reasonable and ordinary care, should
know the risk to which he is exposed, he will as a rule be held to
have assumed them; but where he either does not know, or knowing,
does not appreciate, such risk, and his ignorance or
nonappreciation is not due to negligence or want of care on his
part, there is no assumption of risk on the part of the servant
preventing a recovery for injuries."
Treating the case, as the court below did, as one in which the
injury occurred while the petitioners and respondent were engaged
in interstate commerce, this charge as to the assumption of risk
was not accurate in stating without qualification that the servant
did not assume the risk created by the master's negligence. We have
had occasion to deal with the matter of assumption of risk in cases
where the defense is applicable under the Federal Employers'
Liability Act, being those in which the injury was caused otherwise
than by the violation of some statute enacted to promote the safety
of employees. As this case was not one of the latter class,
assumption of risk was a defense to which the defendants below were
entitled.
Seaboard Air Line R. Co. v. Horton, 233 U.
S. 492;
Jacobs v. Southern Railway Co.,
241 U. S. 229.
As to the nature of the risk assumed by an employee in actions
brought under the Employers' Liability Act, we took occasion to say
in
Chesapeake & Ohio Railway Co. v. De Atley,
241 U. S. 310,
241 U. S.
315:
"According to our decisions, the settled rule is not that it is
the duty of an employee to exercise care to discover extraordinary
dangers that may arise from the negligence of the employer or of
those for whose conduct the employer is responsible, but that the
employee may assume that the employer or his agents have exercised
proper care with respect to his safety until
Page 252 U. S. 22
notified to the contrary, unless the want of care and the danger
arising from it are so obvious that an ordinarily careful person,
under the circumstances, would observe and appreciate them."
The Federal Employers' Liability Act places a co-employe's
negligence, when it is the ground of the action, in the same
relation as that of the employer upon the matter of assumption of
risk. 241 U.S.
241 U. S. 313.
See also Chesapeake & Ohio R. Co. v. Proffitt,
241 U. S. 462,
241 U. S. 468;
Erie Railway Co. v. Purucker, 244 U.
S. 320.
Applying the principles settled by these decisions to the facts
of this case, the testimony shows that Ward had neither warning nor
opportunity to judge of the danger to which he was exposed by the
failure of the engine foreman to cut off the cars. In the absence
of notice to the contrary, and the record shows none, Ward had the
right to act upon the belief that the usual method would be
followed, and the cars cut off at the proper time by the engine
foreman, so that he might safely proceed to perform his duty as a
switchman by setting the brake to check the cars which should have
been detached. For the lack of proper care on the part of the
representative of the railway company while Ward was in the
performance of his duty, he was suddenly precipitated from the
front end of the car by the abrupt checking resulting from the
failure to make the disconnection. This situation did not make the
doctrine of assumed risk a defense to an action for damages because
of the negligent manner of operation which resulted in Ward's
injury, and the part of the charge complained of, though
inaccurate, could have worked no harm to the petitioners. It was a
sudden emergency, brought about by the negligent operation of that
particular cut of cars, and not a condition of danger resulting
from the master's or his representatives' negligence so obvious
that an ordinarily prudent person in the situation in which Ward
was placed had opportunity to know and appreciate it, and thereby
assume the risk.
Page 252 U. S. 23
The Trial court also charged that contributory negligence by
Ward would prevent a recovery. This charge was more favorable to
the petitioners than they were entitled to, as, under the Federal
Employers' Liability Act, contributory negligence is not a defense,
and only goes in mitigation of damages. The giving of this charge
could not have been prejudicial error requiring a reversal of the
judgment.
Another assignment of error, dealt with by the Supreme Court of
Oklahoma, that a jury of less than twelve returned the verdict,
conforming to the state practice, does not seem to be pressed here.
In any event, it is disposed of by
St. Louis & San
Francisco R. Co. v. Brown, 241 U. S. 223.
We find no error in the judgment of the Supreme Court of
Oklahoma, and the same is
Affirmed.