Wood v. Wabash Railroad ( 1914 )

Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision. 1. Master and servant, § 797—when refusal of requested instructions error. In an action against a railroad company for injuries sustained by a switchman alleged to have resulted in obeying an order of a conductor to stop a moving car, requested instructions stating in substance that if the jury find from the evidence that in obeying an order of the conductor, the plaintiff was injured, not by reason of any directions in the order itself but by reason of the manner in which he performed the order, then the jury should find the defendant not guilty, held to state a correct proposition of law, and refusal to give the same held error. 2. Master and servant, § 803*—when instruction as to assumption of rish and contributory negligence in obeying an order erroneous. An instruction on the question whether a servant assumed the risk or was guilty of contributory negligence in obeying a specific order of an employe he was bound to obey, which treated the defenses of assumed risk and contributory negligence as having the same meaning, and directed as a test to be applied to each whether the danger was so great that an ordinary prudent person would have obeyed such order or attempted to perform such act, held erroneous for the reason that such test was not applicable on the question of assumed risk, where it was a question for the jury whether the order was to perform an act in the scope of the servant’s employment