Campbell v. Chicago, Rock Island & Pacific Railway Company
| Decision Date | 02 January 1931 |
| Docket Number | 27471 |
| Citation | 234 N.W. 395,120 Neb. 499 |
| Parties | ALBERT W. CAMPBELL, APPELLANT, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: FRED A. WRIGHT JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
" Assumption of risk is a bar to the action, in a case governed by the Federal Employers' Liability Act [45 USCA §§ 51-59], and does not, like contributory negligence, operate merely in reduction of damages." Pryor v Williams, 254 U.S. 43, 41 S.Ct. 36, 65 L.Ed. 120; Preble v. Union Stock Yards Co., 110 Neb. 383, 193 N.W. 910.
An employee of mature years is taken to assume the risk of such dangers as are normally and necessarily incident to the occupation, whether he is aware of them or not. Seaboard Air Line Railway v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann.Cas. 1915B, 475.
Where the plaintiff's knowledge of the situation and whatever danger existed was at least equal to that chargeable against the defendant, the plaintiff was not entitled to a warning as a matter of law.
" An employee assumes risks not ordinarily incident to his employment, provided he knows of them and appreciates the danger, or provided they are so plainly observable that he must be presumed to know them and to appreciate the danger." Atchison, T. & S. F. R. Co. v. Wyer (C.C.A.) 8 F.2d 30.
Additional Syllabus by Editorial Staff.
Section hand struck by end of rail, when knocking off angle irons with sledge in order to detach rails, as matter of law assumed risk of injury (Federal Employers' Liability Act [45 USCA §§ 51-59]).
Appeal from District Court, Douglas County; Wright, Judge.
Action by Albert Campbell against the Chicago, Rock Island & Pacific Railroad Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
Lower & Sheehan, for appellant.
Guy C. Chambers, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ.
This is an action for damages for personal injuries received by an employee under the federal employers' liability act. At the close of the evidence on behalf of plaintiff, the court sustained defendant's motion to dismiss.
Plaintiff had been employed by defendant as a section-hand for about a year. He had worked for the Burlington railroad at one time for almost five years. One year of that service was as a section-hand and the rest was on the paint gang and on the bridge gang. He was about 44 years old and had an eighth grade education.
The injury occurred May 29, 1929, on the main line about three miles east of Havelock. Plaintiff was a member of a gang relaying new steel rails in the place of old. They had been at this work about three days. The spikes holding several rails to the ties would be pulled and this line of rails, still held together at their ends, would be detached from the track at one end of the line and then pulled over to the edge of the ballast from that end. This left the last length of rail still attached to the track at the other end of the line of old rails in process of removal and replacement, so left because it is often necessary to cut this rail in connecting up the new rails with the old in order not to interrupt train service. It left the old rails still attached together by plates or angle bars. These angle bars are plates or pieces of iron used to connect the two rails by means of bolts through the plates on either side of the rails and through the rails themselves. It was necessary to unscrew the bolt nuts and knock off these angle bars in order to detach the rails. Plaintiff had helped to push the rails out. The foreman told plaintiff to take a maul or sledge and knock the angle bars off. Plaintiff testified that he walked to the middle of the track where the sledge was, took it and proceeded to knock off the angle bar that connected the pushed-out line of old rails with the other end of the rail still left attached to the main line by one end; that when the angle bar was knocked loose that end of that rail flew about 18 inches back to the track, hit him on the left ankle and broke it; that the foreman gave him no directions as to where he should stand; that the end of the rail where he disconnected it was up eight or ten inches, he supposed, from the ground.
It was agreed on the trial that the injury arose out of and in the course of plaintiff's employment in interstate commerce. Therefore, the terms of the federal employers' liability act govern.
"Assumption of risk is a bar to the action, in a case governed by the federal employers' liability act and does not, like contributory negligence, operate merely in reduction of damages." Pryor v. Williams, 254 U.S. 43, 65 L.Ed. 120, 41 S.Ct. 36; Preble v. Union Stock Yards Co., 110 Neb. 383, 193 N.W. 910. Seaboard Air Line Railway v. Horton, 233 U.S. 492, 58...
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