Ramstrom v. Chicago, Milwaukee & St. Paul Railway Co.

The following opinion was filed June 23, 1920: Rosenberry, J. The plaintiff contends upon this appeal that the court erred in setting aside the answers as indicated in the special verdict and in holding that the plaintiff assumed the risk incident to his employment. In passing upon the motions after judgment the trial court said: “The plaintiff in this case testified that mounting cars in motion was a part of his duties as a brakeman; that he had been in the habit of doing so on every day that he had worked for the defendant during the term of his employment, which covered a period of nearly five months. His testimony shows that he was instructed in respect to his duties and the dangers of the employment; that he was familiar with the rules and regulations; that he is a man of .'at least ordinary intelligence, and it is apparent that the danger was open and obvious and as completely within his knowledge as that of the master or its representatives, and he himself says, and he reiterated the statement, that he simply miscalculated the speed of the train. Under these [380] circumstances it is clear that he assumed the risk unless it can be said that the risk was one which was created by the negligence of a fellow-servant and not one incident wholly to the employment.” The court in effect found that there was no evidence to sustain the finding of the jury to the effect that the de- . fendant company was guilty of negligence. We shall not attempt to set out the evidence in detail. We have carefully examined it, and are of the opinion that the trial court’s conclusion should be upheld. This action was brought under the federal employers’ liability act (35 U. S. Stats, at Large, 65, ch. 149), and the rights of the parties must be determined in accordance therewith and with the decisions of the United States supreme court construing that act. Plaintiff bases his contention that the trial court was in error in holding that the plaintiff assumed the risk upon Chesapeake & O. R. Co. v. De Atley, 241 U. S. 310, 36 Sup. Ct. 564. In that case it was held that an employee might presume that a co-employee would exercise due care for his safety, and does not assume the risk attributable to .the operation of a train at an unduly high speed until made aware of the danger, unless the undue speed and consequent danger are so obvious that an ordinarily careful person in his situation would observe the speed and appreciate the danger. The difficulty with plaintiff’s contention is that under the facts of this case the plaintiff did know and appreciate the fact that the train was operating at a high speed and was fully aware of all the hazards of attempting to get upon it as it was then traveling. ■ This case is ruled by Boldt v. Pennsylvania R. Co. 245 U. S. 441, 38 Sup. Ct. 139, where it was held that under the employers’ liability act a servant assumes extraordinary risk incident to his employment or risks caused by the master’s negligence which are obvious and fully known and appreciated by him, as he did at common law. [381] As the trial court said, “'When a defect is so obvious or so patent as to be readily observed by a servant by the reasonable use of his senses, having in view his age, intelligence, and experience, and the danger and risk from it are apparent, he cannot be heard to say that he did not realize or appreciate them.” In this case the plaintiff had seen the train approaching for more than two blocks. He ran a race with it in order to procure his coat. He ran across the street just in front of it^ and testified that it was coming so fast that he barely made it, and then with full knowledge of all the facts and circumstances he attempted to mount the train. He was a man of mature years, and he was fully cognizant of the danger attendant upon his act. We think the trial court correctly held that he assumed the risk. Seaboard A. L. Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635; Mielke v. C. & N. W. R. Co. 103 Wis. 1, 79 N. W. 22. By the Court.- — Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on October 19, 1920.