Chi., R. I. & P. Ry. Co. v. Ward

• Decision Date: 04 June 1918
• Docket Number: Case Number: 7646
• Citation: 68 Okla. 201,1918 OK 325,173 P. 212
• Parties: CHICAGO, R. I. & P. RY. CO. et al. v. WARD.
• Court: Oklahoma Supreme Court

1918 OK 325

173 P. 212

68 Okla. 201

CHICAGO, R. I. & P. RY. CO. et al. v. WARD.

Case Number: 7646

Supreme Court of Oklahoma

Decided: June 4, 1918

Syllabus

¶0 1. Master and Servant--Employers' Liability Act--Assumption of Risk--Question For Jury.

Under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), the servant assumes all the ordinary risks of his employment which are known to him, or which could have been known by the exercise of ordinary care to a person of reasonable prudence and diligence in like circumstances. Risks not naturally incident to the occupation, but which arise from the negligence of the master, are not assumed by the servant until he becomes aware of such negligence and of the risk arising therefrom, unless the negligence and risk are so apparent and obvious that an ordinarily careful person would observe the one and appreciate the other. Whether the risk is an ordinary risk of the employment, or an extraordinary risk known to the servant, or with knowledge of which he is chargeable, is a question of fact to be submitted to the jury.

2. Appeal and Error--Harmless Error--Instructions.

Plaintiff sued defendant for injuries sustained in falling from a box car, alleging the failure to uncouple and the sudden and unusual stopping of the string of cars on which he was working constituted negligence. The court instructed the jury that plaintiff assumed all the ordinary and usual risks of the employment of which he had knowledge, or should, in the exercise of reasonable care, have known to exist, but that he did not assume such risks as were created by the master's negligence. Held, the servant does assume risks arising from the negligence of the master after he becomes aware of such negligence and risks, or when they are so apparent and obvious that an ordinarily careful person would observe the one and appreciate the other. Hence that portion of the instruction to the effect that he did not assume such risk was error, but, applied to the facts in this case, was not prejudicial for the reason, if the failing to uncouple and the sudden stopping of the cars amounted to negligence of the master, and the risk caused thereby was not a usual risk of the employment, such risk, being coincident with the injury, was not assumed by the plaintiff because he could not have had knowledge of it.

3. Appeal and Error--Master and Servant--Federal Employers' Liability Act--Contributory Negligence--Effect.

Instructions to the effect that contributory negligence is a bar to the servant's recovery under the terms of the federal Employers' Liability Act is not a correct statement of the law, but, being error in the master's favor, is not sufficient to reverse the judgment based upon the master's negligence.

4. Jury--Trial by Jury--Federal Constitution--State Courts.

The requirement of Const. U.S. Amend. 7, that trials by jury be according to the course of the common law. i. e., by unanimous verdict, does not control the state courts, even when enforcing rights under a federal statute like Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), and such courts may therefore give effect in actions under that statute to a local practice permitting a less than unanimous verdict.

Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.

Action by Fred Ward against the Chicago, Rock Island & Pacific Railway Company and another. Judgment for plaintiff, and defendants bring error. Affirmed.

R. J. Roberts, C. O. Blake, W. H, Moore, K. W. Shartel, and Abernathy & Howell, for plaintiffs in error.

T. G. Cutlip, W. S. Pendleton, and R. A. Rogers, for defendant in error.

OWEN, J.

¶1 Fred Ward, plaintiff in the trial court, was employed by the railway company in the capacity of switchman, and, car in the railway company's switchyards at Shawnee, was injured by falling from the car. He sued the railway company for negligence in the manner of switching the cars on which he was working, alleging that the engine foreman, an employe of the company, negligently directed the engineer to stop and suddenly check the cars in such a manner as to cause him to lose his balance and fall. He alleges that it was the duty of the engine foreman to uncouple the cars from the switch engine as soon as they were shoved upon the switch tracks, thereby permitting the cars to run down grade and be stopped by plaintiff, and that the failure of the foreman to discharge this duty and the sudden stopping of the cars amounted to negligence and was the proximate cause of his injury. The defendants answered by general denial and by alleging assumption of risk and contributory negligence on part of the plaintiff. Judgment below was for plaintiff. Defendants bring the case here.

¶2 To reverse the judgment of the lower court plaintiffs in error urge two assignments: First. The motion for an instructed verdict for defendants should have been sustained because the plaintiff assumed the risk of the injury as a matter of law. Second. Erroneous instructions relating to (a) assumption of risk; (b) majority verdict; and (c) contributory negligence.

¶3 Under the first assignment plaintiffs in error insist that the proof brings the case within the provisions of the federal Employers' Liability Act, and that under the terms of this act defendant assumed the risk complained of. Neither of the defendants in their answer claimed the benefits of the federal Employers' Liability Act, or made any reference to the car from which the plaintiff fell being engaged in interstate commerce. Assuming, without deciding, that merely proving the car was part of an interstate commerce shipment was sufficient to bring the case within the terms of the federal act, it does not follow that the lower court should have directed a verdict for defendant, for the reason that under the terms of the federal Employers' Liability Act the plaintiff assumed only the ordinary and usual dangers incident to the employment which were known to him, or which could have been known with the exercise of ordinary care by a person of reasonable prudence and diligence under like...