Isley v. Wabash Railroad

5 Ohio C.C. (n.s.) 669, 1905 Ohio Misc. LEXIS 183

• Court: Ohio Circuit Courts
• Decided: February 11, 1905
• Status: Published

Opinions

Parker, J.

Counsel for the defendant in error urge upon the hearing that the doctrine of the assumption of risks applied here, even though the engineer had no reason to anticipate these cattle upon the track — that it applied after he discovered the cattle upon the track; that when he then decided to go forward with his locomotive that he assumed the risk of the result that might follow. Now as we understand it, the doctrine of assumption of risks is based upon the opportunity the servant has to exercise his option or election to remain in the employment and proceed with the work of the master; and that it does not apply to eases where the servant is met or confronted by an emergency that does not afford him an opportunity to exercise such election. Manifestly under circumstances of this kind, he could not lay down his work, he could not leave his. locomotive and say “I will no longer remain in the employ of this railroad company, because, if I do, I assume the risk that may result from these cattle being upon the track ahead of me. ’ ’ The doctrine of the assumption of risk is not applicable to such a case at all. If he went forward negligently, it would be the doctrine of contributory negligence. If the doctrine of assumed risk should apply, then it would follow that the master (or the railroad company) would never become liable no matter how negligent it may have been in allowing cattle to come upon the track; that no cause of action ever could accrue to the engineer, because.he assumed that risk; not that his cause of action was defeated by his subsequent contributory negligence; and upon that subject I think this case of The L. & N. R. R. Co. v. Kelley, supra, is in point. Indeed, so far as we can discover, there is no break in the line of authorities as to this principle. I will read from page 409 of this case the following paragraph:

“In the order of presentation in the briefs, the first request was to the effect that if the plaintiff knew that the deadwoods of the cars he was attempting to couple were out of repair, that there were holes and pitfalls in the roadbed, and that the fireman in charge of the engine was incompetent, and remained in the service of the company without making objection, and without receiving any promise that the cause of danger mentioned should be removed, he was not entitled to relief. This was properly refused. If the defendant in error knew that the deadwoods were out of repair, he must, in all probability, have acquired the knowledge on the spot; and, consistently with the terms of instruction, his supposed knowledge of the condition of the track and of the inoompetency of the fireman as engineer may have come to him so recently as to have afforded him no opportunity to make objection or complaint. Besides, even if he had the supposed knowledge, it was a question for the jury whether or not under the circumstances, he ought to have attempted to make the coupling, and in so doing was himself negligent, or to be considered as having voluntarily assumed the risk of his act. The question was essentially one of contributory negligence and the instruction should have been so framed as to leave it to the jury.” (Citing cases.)

Harry Scribner, for plaintiff in error. A. L. Smith, for defendant in error.