MR. JUSTICE McREYNOLDS delivered the opinion of the court.
At Buffalo, New York, defendant has a yard where freight trains are made up. Cars under control of a brakeman descend by gravity to desired positions on connecting tracks which lie southward of the "hump" or high point. A rule forbade employees from going between cars without first taking precautions not observed in the present case. Some evidence tended to show that under long-continued practice, considered good railroading, cars (in "strings" or "cuts") were constantly sent down and purposely allowed to strike others with sufficient force to secure coupling, but not hard enough to injure the equipment, "regardless of the position the men are in, putting them under obligation to take care of themselves."
Suing under the Federal Employers' Liability Act plaintiff maintained that the brakeman in control negligently permitted the moving cars to strike with too great violence; also that the company negligently failed to promulgate and enforce adequate rules to safeguard deceased while occupied about this task; and some evidence tended to support both claims. The Circuit Court of Appeals affirmed a judgment upon verdict for defendant after the trial court had denied motion for new trial based solely upon its refusal to give the charge specially requested by plaintiff and copied below. 218 Fed. Rep. 367.
To the general charge plaintiff made no objection whatever. In the first paragrpah it declared: "The foundation for the action is the Employers' Liability Act, which was passed by Congress in the year 1908, and which substantially provides that if the employees of interstate railway carriers are injured while at work, on account of the negligence of the employer, or on account of the negligence of an officer or agent, or, indeed, even on account of the negligence of a fellow servant, that a recovery can be had." Continuing, it explained nature of the accident, relationship, responsibilities and obligations of parties, definition and effect of contributory negligence, etc.
Concerning assumption of risk the court said: "Evidence has been given by other witnesses that customarily cars are sent over this `leader' into the yard of the defendant, and into the railroad yards of other railroad companies, ad libitum, — that is, they are sent freely, one after another, to classify them and to make up trains when
At defendant's request and without objection, the jury were told "that the decedent assumed the obvious necessary risks of the employment in which he was engaged."
Plaintiff then asked a charge that "the risk the employee now assumes, since the passage of the Federal Employers' Liability Act, is the ordinary dangers incident to his employment, which does not now include the assumption of risk incident to the negligence of the carrier's officers, agents or employees." Denying the request, the court said: "Under the Employers' Liability Act the employee simply assumes the risk of his employment. Section 4 reads, `such employee shall not be held to have assumed the risk of his employment in any case where a violation by such common carrier of any statute enacted
Section 1, Employers' Liability Act, 35 Stat. 65, declares that carriers "shall be liable in damages to any person suffering injury while he is employed," etc., "resulting in whole or in part from the negligence of any of the officers, agents, or employees 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." In cases within the purview of the statute the carrier is no longer shielded by the fellow-servant rule, but must answer for an employee's negligence as well as for that of an officer or agent.
In Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 503, we said: "It seems to us that § 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." Jacobs v. Southern Ry. Co., 241 U.S. 229, 235.
At common law the rule is well settled that a servant assumes extraordinary risks incident to his employment or risks caused by the master's negligence which are obvious or fully known and appreciated by him. Shearman & Redfield on Negligence (6th ed.), § 208; Bailey Personal Injuries (2d ed.), § 385. This general doctrine was clearly recognized in Gila Valley &c. Ry. Co. v. Hall, 232 U.S. 94, 101; Jacobs v. Southern Ry. Co., supra; Chesapeake & Ohio Ry. Co. v. De Atley, 241 U.S. 310, 313, and Erie R.R. Co. v. Purucker, 244 U.S. 320, 324.
The judgment below is
MR. JUSTICE DAY took no part in the consideration or decision of this cause.