Thrall v. Pere Marquette Railway Co.

I concur in reversing the judgment, but think there should be no new trial.

Four contributing causes produced the accident: 1. Improper loading of the drill. 2. Worn flanges of the hand car wheels. 3. Rough condition of the railway track. 4. Running the hand car backward. The improper loading of the drill was not negligence of defendant; neither was the running of the hand car backward. The worn flanges of the hand car wheels and the rough condition of the track must have been well known to the deceased, for both were of long standing, and the danger incident to their use was apparent. The deceased, as section foreman, had the care of the track under his immediate supervision, and must be held to have been aware of the defective and dangerous condition now alleged to have been known to defendant, and he is to be held to have assumed the risk incident to its use unless he received a promise of its repair, and, while waiting a reasonable time for the repair, was injured. There was no promise of repair made the deceased or made under circumstances relieving him from the assumption of the risk. The worn condition of the wheel flanges was a result of long use and necessarily apparent to one riding upon the hand car. There is no claim that the attention of the defendant was called to this condition and that repair was promised, and, therefore, the deceased assumed the risk now complained of in the use of the hand car.

"The Federal employers' liability act permits recovery upon the basis of negligence only. The carrier is not liable to its employees because of any defect or insufficiency in plant or equipment that is not attributable to negligence. The burden was on plaintiff to adduce reasonable evidence to show a breach of duty owed by defendant to him in respect of the place where he was injured, and that in whole or in part his injuries resulted proximately therefrom. And, except as provided in § 4 of the act, the employee assumes the ordinary risks of his employment; and when obvious, or fully known and appreciated, he assumes the extraordinary risks and those due to negligence of his employer and fellow employees." (Cases cited.) Delaware,etc., R. Co. v. Koske, 279 U.S. 7 (49 Sup. Ct. 202).

"When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arises out of the master's breach of duty. If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance or until the particular time specified for its performance, the employee relying upon the promise does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise." Seaboard Air LineRy. v. Horton, 233 U.S. 492, 504 (34 Sup. Ct. 635).

The judgment should be reversed, with costs to defendant, and without a new trial.

NORTH, J., concurred with WIEST, C.J. FELLOWS, J., took no part in this decision.