Crotty v. Great Northern Railway Co.

Pee Cdeiam. This is an appeal from an order overruling a demurrer to the complaint. It is alleged in substance that the defendant negligently furnished deceased with a defective monkey wrench for use in adjusting an air pump upon a locomotive [536] engine, that defendant had been notified of the defect, that by reason of such negligent defect the wrench slipped while deceased was using it, and he was thrown to the ground and sustained injury from which he died. This is sufficient pleading of actionable negligence. Appellant contends that it conclusively appears from the allegations of the complaint that deceased had assumed the risk incident to the use of this defective wrench. . We cannot so hold. It does not appear that deceased had ever used the wrench before. The circumstances under-which it was furnished to him on this occasion do not appear. It does not conclusively appear that he knew of the defect, or had opportunity to observe it. None of these things will be presumed. Assumption of risk is a matter of defense. While the question may be raised by demurrer, if the assumption of risk appears affirmatively from the face of the complaint, we cannot hold that the facts pleaded in this complaint show as a matter of law that deceased assumed the risks incident to the use of the wrench. Order affirmed.