Dunn v. Oregon Short Line Railroad

The case having been stated, as above,

BARTCH, C. J.,

delivered the opinion of the court.

At the time of the submission of the case to the jury the defense, inter alia, requested the court to charge as follows: 1 ‘ The court charges you in this case that, as matter of law, the plaintiff is not entitled to recover, and your verdict should therefore be for the defendant.” This request was refused, and the action of the court in the premises has been assigned as error.

The appellant contends that the entire record presented a case involving the principle of assumed risk of the servant, and showed such a state of facts as made it the duty of the court to so charge the jury, and we are of the opinion that this contention is well founded. Upon careful examination of the evidence, the conclusion seems irresistible that the plaintiff has shown no right of recovery. We are unable to perceive, from the proof, wherein the company was guilty of actionable negligence. The plaintiff’s own testimony fails to. show it. The platform was hut a simple arrangement, constructed by the men who were to load the car, for their own convenience, out of material not furnished by the company for such purpose. It was only a temporary thing, of their own invention, to enable them to perform their work more easily. The company had furnished no appliances other than the car, and this could have been loaded in the ordinary way, without the platform. The injured knew this; had assisted in loading ties on a previous occasion; saw the platform, and how it was constructed; saw that it wa,s wet and muddy; must have known, or without inconvenience could have learned, that the planks were not nailed to the ties; and, without making any objection whatever to the contrivance, or the manner of loading the car, voluntarily, with the *483 rest of the workmen, used the platform. After having so used it for a period of about two hours he slipped, fell, and was temporarily injured, hut not severely. As to the fistula on his neck, the principal injury of which he complains, there appears to be no evidence to show that it was caused by or resulted from the accident-nothing to connect it .with the accident. The injured himself said: ‘ ‘ This condition of my throat developed something like two months after the original swelling and discoloration had gone away. ’ ’ If, under such facts and circumstances as are disclosed by this record, an employer would be liable to an employee in damages, it would seem difficult to conceive of a case of accidental injury where the employer would not be liable. That this is one of those unfortunate accidents for which there is no responsibility on the part of the employer, we entertain no doubt. It is clearly a case of an assumed risk incident to the employment.

We are aware of the general rule that, where a master employs a servant, he must exercise ordinary care to furnish the servant a reasonably safe place in which to perform the service, and a failure to do so will render the master liable for any injury to the servant resulting from such failure; but in this case we can perceive no violation of the rule that can avail the respondent, who, we have a right to assume, in the absence of evidence to the contrary, was a man of average understanding and knowledge of things about him. We cannot say from the proof that the place was not reasonably safe, but if it was not — if it was dangerous — the danger was open and obvious, and the employee could easily observe it, and had ample opportunity to discover it. Whatever hazard was connected with the loading of the ties was equally open and obvious to the employee as to the employer, if not more so; and, if there was anything unsafe about the platform, the exercise of ordinary care would have revealed it to the employe. He having voluntarily engaged in such service, concurring in the use of the contrivance, observing its construction *484 and temporary character, and, as a man of ordinary understanding and knowledge, aware of the dangers incident to the employment, and having, of his own volition, undertaken to perform the service in that way, must be held to have assumed the ordinary risks of injury incident to that service, including the risk of the injury in question, and cannot now be heard to complain. When in such case the servant assents “to occupy the place prepared for him, and incur the dangers to which he will be exposed thereby, having sufficient intelligence and knowledge to enable him to comprehend them, it is not a question whether such a place might, with reasonable care, and by a reasonable expense, have been made safe. His assent has dispensed with the performance on the part of the master of the duty to make it so. Having consented to serve in the way and manner in which the business was being conducted, he has no proper ground of complaint, even if reasonable precautions have been neglected.” Sullivan v. India M. Co., 113 Mass. 396; Cooley on Torts, 634-636; Higgins v. Railroad, 26 Utah 165, 72 Pac. 690; Christienson v. Railroad, 27 Utah 132, 74 Pac. 876; Lovejoy v. Railroad, 125 Mass. 79, 28 Am. Rep. 206; Baker v. Paving Company (C. C.), 92 Fed. 117; Sweeney v. Envelope Co., 101 N. Y. 520, 5 N. E. 358, 54 Am. Rep. 722; McMillan v. Spider Lake S. M. & L. Co., 115 Wis. 332, 91 N. W. 979, 60 L. R. A. 589, 95 Am. St. Rep. 947; Williams v. Railroad, 116 N. Y. 628, 22 N. E. 1117; Tuttle v. Railroad, 122 U. S. 189, 7 Sup. Ct. 1166, 30 L. Ed. 1114

We are of the opinion that the court erred in refusing to charge the jury as requested, and, having concluded that no right of recovery exists in this case, it becomes unnecessary to decide the other questions presented.

The case is reversed, with costs, and remanded to the court below for further proceedings in accordance herewith. It is SO' ordered.