Chicago & N.W. Ry. Co. v. Ott

• Citation: 238 P. 287,33 Wyo. 200
• Decision Date: 22 June 1925
• Docket Number: 1212
• Parties: CHICAGO & N.W. RY. CO. v. OTT [*]
• Court: Wyoming Supreme Court

238 P. 287

33 Wyo. 200

CHICAGO & N.W. RY. CO. v. OTT ^[*]

No. 1212

Supreme Court of Wyoming

June 22, 1925

Error to District Court, Converse County; C. O. Brown, Judge.

33 Wyo. 200 at 222.

Original Opinion of June 22, 1925, Reported at: 33 Wyo. 200.

Rehearing denied.

BLUME Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

ON PETITION FOR REHEARING

BLUME Justice.

A petition for rehearing has been filed herein. Counsel for the company now call our attention to sec. 5388 W. C. S. 1920 which in effect appears to abolish the defense of assumption of risk in actions for negligence against railroad companies while we, in the original opinion assumed that such defense could be set up in the case at bar under the state law as well as under the Federal Employer's Liability Act. Our attention had not been called to said section previously, and our assumption was evidently erroneous. What we stated in that connection was in an attempt to distinguish the case of Cincinnati etc. Railway Company v. Tucker, 168 Ky. 144, 181 S.W. 940, where the court had held that where the plaintiff's petition did not disclose the action to fall under the Federal Employer's Liability Act, it should, when that fact was disclosed by the evidence, be amended to conform to the proof, or dismissed. It may be, in view of the section of our statute above referred to, that this case may not be distinguishable from the Kentucky case in the respect mentioned, but that is wholly immaterial. We refused to adopt the rule in that case, and held that if necessary, the petition should, under the circumstances, be regarded as amended. The rule contended for by counsel is highly technical and without any merits under the facts of this case. The Railroad Company was entitled to have the case tried under the Federal Law. That was done, for it is clear that the lower court did not submit the case to the jury under the theory that section 5388, supra, applied, but on the contrary under the theory that the Railroad Company was entitled to the benefit of the defense of assumption of risk. Counsel also complain that the court erred in instructions 17 and 20 given to the jury, in speaking of "proximate," "direct," and "contributing" cause. No exceptions were taken to these instructions, no assignment was based thereon either in the motion for a new trial or the petition in error. The point in fact is now argued for the first time, but counsel think that we should still consider it under the holding of North C. R. R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591 Ann. Cas. 1914 C. 159; and Toledo etc. R. Co. v. Slavin, 236 U.S. 454, 59 L.Ed. 671, 35 S.Ct. 306, 59 L. ed....