Plaintiffs base their plea for reversal on three propositions: (1) Mrs. Meyer was guilty of no more than assumption of risk, which is not a defense to a cause of action for violation of the safe-place statute; (2) the court should have submitted a question inquiring whether defendant was negligent with respect to maintenance of adequate lighting; (3) the court erred in submitting a question inquiring whether Mr. Meyer was negligent with respect to management of the toboggan on the last run.
1. Did Mrs. Meyer's conduct constitute no more than assumption of risk? The jury found that Mrs. Meyer was
"... an intended and continued use of a known defective appliance or a known unsafe place by the employee in substantially the same way as the employer instructed or intended it should be used falls under the definition of assumption of risk as expressed in this statute and is not to be considered contributory negligence."
In that case the court held that the use of an unsafe ladder by the plaintiff employee constituted assumption of risk and not contributory negligence, although there was a jury question whether he was negligent in placing the ladder in a particular spot where the ground was soft.
In Kelenic v. Berndt
Conduct which may be termed assumption of risk and conduct which constitutes contributory negligence are not mutually exclusive. In Scory v. LaFave
"... the assuming of such risks as ordinarily careful and prudent men similarly situated usually assume is within the field of assumption of risk whether assumed knowingly or ignorantly. But the assuming of such risks as are more hazardous than those which ordinarily careful and prudent men similarly situated usually assume constitutes contributory negligence."
It has been suggested that in host-guest automobile accident cases, at least, conduct which has heretofore been denominated assumption of risk is but a phase of contributory negligence.
In cases more recent than those cited by plaintiffs, and heretofore referred to, this court has held that a plaintiff's use of an unsafe place of employment when he knew or ought to have known of the danger may constitute contributory negligence.
Plaintiffs also cite the discussion of assumption of risk in Haile v. Ellis.
Mrs. Meyer continued to use the toboggan run after several trips demonstrated that it was too shallow to guide the toboggan in a safe course through the trees. The party was there for amusement, without any compulsion to continue. The evidence would warrant the jury in determining that the known risk far outweighed the utility of another trip and that it was negligent to take the chance. The trial court did not err in submitting the issue.
2. Defendant's failure to maintain adequate lighting. There were light fixtures in the toboggan area, but they were not lighted. Failure to light them may well have been a violation of the safe-place statute. Plaintiffs' witnesses testified, however, that they were able to see the runs, the trees, and the forks in the run from the reflected light of the ski jump.
Plaintiffs tried the case upon the theory that they were sliding in one of the troughs constructed by defendant for tobogganing. Upon that theory, and in view of their testimony as to their ability to see, it cannot be said that lack of light was a cause of the upset and Mrs. Meyer's misfortune. Upon that theory it was not error to refuse to inquire as to inadequate lighting.
We have referred to defendant's claim that plaintiffs were not using a constructed run, but were sliding down a service
3. Mr. Meyer's negligence. As we see it, if Mrs. Meyer was negligent in taking the last trip, Mr. Meyer was negligent in the same respect and to the same degree. The court asked the jury whether he was negligent with respect to his management of the toboggan on the last trip. Such negligence would be in addition to his negligence in starting out on that trip. It would necessarily consist of some act or omission which was a cause of the toboggan's leaving the run, assuming it was in a run, or of his tipping the toboggan over after it left the run. We find no evidence that he was negligent in either respect. Upon the record made, it would be pure speculation to say that the party would have fared better if he had permitted the toboggan to slide among the trees instead of stopping it by tipping it over. It was error to submit this question.
The rights of plaintiffs have not, however, been prejudiced by the error. The jury attributed one half the causal negligence to Mrs. Meyer. Upon that verdict she cannot recover. There is no reason to suppose that the jury would have attributed less negligence to her if it had not been asked whether Mr. Meyer was negligent with respect to management or if it had not found that he was.
By the Court.—Judgment affirmed.