Summary
Appeal from the circuit court of "Warren county.
Hon. E. L. Brien, Judge.
Suit by John C. Dees against the Yazoo & Mississippi Valley Bailroad Company. From a judgment for plaintiff, defendant appeals.-
The facts are fully stated in the opinion of the court.
The decisions of the supreme court of the United States applicable to the facts of this case, control. “Whenever Congress enacts statutes pursuant to its power under the commerce clause, such laws, when enforced in both state and federal courts must be construed in the light of federal decisions and applicable common-law principles as interpreted and applied in the federal courts to the exclusion of common-law rules different therefrom enforced in state courts. It therefore follows that even in actions under the federal act prosecuted in state courts the decisions of the state courts do not govern in determining the application of the doctrine of assumption of risk if the rules therein adopted differ from those applied in the federal, courts,” 1 Roberts’ Federal Liabilities of Carriers, sec. 557; Southern It. Co. v. Gray, 241 U. S. 333.
3. Plaintiffs assumed the ordinary -risks incident to his employment. Plaintiff assumes the ordinary risks normally incident to his occupation whether he was actually aware of them or not. ’ ’ 1 Robert Federal Liabilities of Carriers, sec. 558; Seaboard Air Line Raihoay v. Horton, 233 U. S. 492-504.
4. Plaintiff assumed the extraordinary risks due to negligence of employer and fellow employees when known and appreciated by him. “Under the federal Employer’s Liability Act, except in the cases specified in section 4, the employee assumes extraordinary risks incident to his employment, and risks due to negligence of employer and fellow employees, when obvious or fully known and appreciated by him.” Boldt v. Pennsylvania Railroad C.o,, 245 U. S. 441.
Even, therefore, if the lamp tender had been incompetent (the fact that he was competent was established in this case), his failure to keep these lamps lighted, admittedly known to plaintiff, would defeat any action to recover for injury, sustained by reason of any defective lighting; but it is also established in this action that the lighting was in no respect defective, and, on the contrary, it was shown that the lights in the best lamps are occasionally extinguished.
5. Master not an insurer of the safety of the employee and he must have actual or constructive notice of a defect before plaintiff can recover. “The master does not insure or guarantee that the machinery or appliances are in a safe and suitable condition, and where defects exist, the master is not held to be guilty of negligence unless it appears that he knew, or by the exercise of ordinary care, could have known that such machinery and appliance had become defective and were in an unsafe condition.” In other words, it'must appear in order to entitle the plaintiff to recover, that the master had either actual or constructive notice of the defect alleged to have caused the injury, and these facts must be established by legal evidence. Washington, etc., Railway Go. v. McDade, 135 IT. S. 554, 1.0 Sup. Ct. 1044, 34 L. Ed. 205; Norfolk <£ Western Ry. Co. v. Reed, 167 Fed. 16, 92 C. C. A. 78; Virginia, etc., Wheel Co. v. Chalkley, 98 Ya. 62, 34 S. E. 676.” Barett v. Virginia Ry. Co. 244 Fed. 399; Hope v. Railroad Company, 98 Miss. 829; Mississippi Central R. R. Co. v. Bennett, 111 Miss. 163; Lumber Co. v. Garner, 117 Miss. 814; Seaboard Air Line Railway -v. Horton, 233 U. S. 492, 501; Yazoo é Mississippi Valley Railroad Company v. Mullins, administratrix (April 21., 1919); United • States Supreme Court Advance Opinions, No. 13, p 433, Lawyers Co-op. Publishing Company.
6. Master only required to see that the instrumentalities are reasonably safe, for the functions designated.. “A general principle which is frequently conclusive against the servant’s right to maintain an action is that the master’s duty in respect to his instrumentalities is restricted to seeing that they are reasonably safe for the performance of the functions for which they are designed. ’ ’
“It is universally agreed therefore, that an employer is not liable where the servant’s injury was not caused by any defect in the appliance which affected its safety when it was used in the ordinary manner and for the purposes for which it was intended.” 3 LaBatt on Master & Servant (2 Ed.), section 921.
The master is not obligated to keep a building in a safe condition at every moment of the work. The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not obligate him to keep a building, which they are employed in erecting, in a safe condition at every moment of their work, so far as its safety- depends on the due performance of that work by them and their fellow servants.” Armour v. Hahn, 111 U. S. 313.
8. An employee voluntarily accepting employment with knowledge of conditions, and without obligation, even assumes the risks of insufficient lighting. “A carpenter assumed the risk of injury arising from insufficient lighting where he was required to work, where he entered .upon the work without objection. Cincinnati, N. O. & T. P. By. Co. v. Skinner, 136 S. W. 644. In this case it is established by the evidence that the lighting was sufficient.
9. Plaintiff knew the condition, and appreciated the danger, therefore assumed the risk, and cannot recover. “An experienced employee, admittedly knowing the material conditions and presence of a pile of cinders who attempts to board a moving engine with, a vessel of water in his hand, must be considered as appreciating the danger and assuming the -risk although at the time he may have forgotten the existence of the cinders; and this is so, even if the employer ivas negligent in allowing the cinders to remain. There being no violation of any safety statute, the common-law defense of assumption of risk is not eliminated in such a cause by the Employer’s Liability Act.” Jacobs v. Railroad Company, 241 U. S. 244.
The plaintiff, “an experienced employee, admittedly knowing the material conditions ’ ’ assumed the risk.
10. The court erred in restricting the number of instructions. “It is the right of the parties to have the jury instructed on the law applicable to the case, clearly and pointedly, so as to leave no reasonable ground for misapprehension or mistake. And it is the duty of the judge, when requested, to give in charge any requested instruction which is correct as a proposition of law and applicable to the issues.” 11 Ene. PI. & Prac. 213. “The parties have a right to indicate, by written requests, the points upon which they respectively desire the jury to be informed as to the law.” Archer et al. v. Sinclair et al., 49 Miss. 343, sec. 793, Code 1903, Hemingway’s Code, sec. 577.
11. Even if liability could have been established which is denied, the verdict is grossly excessive. Plaintiff was not permanently injured, and only lost- seven days. He worked more than' a year after receiving the injury, performing the same work, drawing more pay, and worked frequently overtime. He resigned on account of drunkenness and then sued for the alleged injury.
The duty of the master in cases similar to the case at bar, has. been defined by. the supreme court of the United- States in Union Pacific v. O’Brien, 40 Law. Ed. 771, as follows: “The general rule undoubtedly is that a railroad company is hound to provide suitable and safe material and structures in the construction of its road and appurtenances, and if, from a defective construction thereof, an injury happened to one of its servants the company is liable for the injury sustained. The servant undertakes the risks, of the employment as far as they spring from the defects incident to the service but he does not take the risks of the negligence of the master itself. The master is not to be held as guaranteeing or warranting absolute safety under all circumstances, hut it is hound to exercise the care which the exigency reasonably demands in furnishing proper roadbed, track and other structures, including sufficent culverts for the escape of water collected and accumulated by its embankments and excavations.” But counsel say plaintiff had used the switch numerous times that night; had gone in on the switch track immediately before he was injured. We repeat what we have already said, there is no testimony to show that plaintiff had touched the switch, either that he did or did not, and we say that if he had thrown the switch fifty times that ni'ght and the switch lamp was burning, it is all the greater reason for his assuming that it was still burning and indicated the switch stand when he came out of number six switch.
As to counsel’s contention that if the light was out the defendant had no notice of it, we answer Grayson had knowledge of the condition of that switch lamp. According to his testimony he was charged with the duty and responsibility of ascertaining the condition of these lamps and keeping them in fit and proper shape. When Grayson inspected this lamp a few hours before this injury he necessarily found the condition of the switch lamp and found that it did not have enough oil in it to run through the night, i'f indeed it had any at all. If Grayson did not inspect it, he failed to perform his duty and we pass this over with the observation that switch lamps went out from a variety of causes and even attempt to leave the impression with the jury that the oil was stolen from this lamp. Unfortunately for this view there is no testimony and the court excluded this naked and unsupported hypothesis. In the case of Brown v. Y. é M. V. B. B. Go., 41 So. 383, this court said: “The court will not go beyond the case shown to imagine that the trouble might have been from an fin-foreseen cause, such as a freshet, storm, felonious tampering with the rails, “etc.”
We deny that plaintiff was the first person to ascertain the defective condition of the lamp. It may be true, as we have stated already, that plaintiff was the first person to discover light being out; this was but evidence of the unfitness and improper condition of theswitch lamp and was hut the natural effect of an antecedent cause and that cause was Grayson’s failure to inspect and put the lamp in fit and proper shape.
So we say that the master had full knowledge of the condition of this lamp and if we are in error as to this we say that failure to have the knowledge that an inspection would disclose is equally culpable and defendant is liable in either event. It matters not which horn of the dilemma is taken, defendant is impaled and cannot escape.
We are in perfect accord with the cases of Bailroad Go. v. Barrett, 1.66 U. S. 617; Looney v. Metropolitan B. B. Go., 200 U. S. 480; Hough ,v. B. P. B. B. Go., 100 U. S. 218” (and other cases cited). Counsel cite the case of Hoarser v. Bailroad Go., 60,' 98 Miss. 82. In this case a brakeman, whie engaged in making a coupling on a car in attempting to withdraw his hand, caught his glove in a sliver of steel that had been broken off and projected down from under the side of the link and his hand • was crushed. The court said in its opinion on page 829, which is cited by opposing counsel that:
“In the case at bar no attempt was made to show actual knowledge on the part of the master. In order to show constructive knowledge, it is necessary for appellant to show, not only that the defect could have been discovered by a reasonably careful inspection of the link but the master had an opportunity, in the exercise of reasonable diligence to have made such an inspection. In order to show that the master had such an opportunity for inspection, it was necessary for him to show either that the defect in the link existed at the time it was furnished by the master, or, in event it became defective after it was so furnished, that the defect had been in existence for a length of time sufficient to have afforded appellee, in the exercise of reasonable diligence, and opportunity to inspect it. Both of these facts can of course, be established by circumstantial evidence in the same manner that any fact may be so established. ’ ’
According to defendant’s own witness, Grayson, he both had the opportunity to and did inspect this lamp less than twenty-four hours before the injury and according’ to his testimony he would necessarily have ascertained the condition of this lamp that it did not have sufficient oil to run through the night. Therefore we say, in the language of Judge Smith in the Hope case:
“The defect had been in existence for a length of time sufficient to have afforded the railroad company, in the exercise of reasonable diligence an opportunity to inspect it.” Miss. Central Co. v. Bennett, 111 Miss. 163; Lumber Co. v. Garner, 11 Miss. 814, and Seaboard Air Line Railway v. Horton, 233 U. S. 492, are all in accord with the Hope case just considered and relate to the necessity of notice or opportunity for notice of the defects.
Counsel cite case of Armour v. Haln, 111 IT. -S. 313, on the proposition that the master must furnish reasonably safe structures and places for his servants to work.- This ease has no possible application to the intant case, as in that case, Hahn was, himself, engaged and employed, in erecting the building, and its safety depended upon him and his fellow employees.'
Plaintiff did not assume the risk. — Plaintiff did not assume the risk under the facts in this case. North Pac. Co. v. Everett, 38 La. Ed. 373; Gila, etc., Co. v. Hall, 58 Law. Ed. 524'; Vickery v. N., etc., Co., 89 Atl. 277. When and under what conditions does an employee engaged in interstate commerce, and whose case therefore is referable to Federal Employers’ Liability Act, assume the risk of his employment! Under this statute the employee, so far as the assumption of risk is concerned is in the same attitude that he would be in a case where the common-law doctrine of assumption of risk is relied on, excepting those cases where Safety Appliance Acts are violated. The leading case in this country since the enactment of this Federal Employer’s Liability Statute is the case of Seaboard Air Line R. R. Co. v. Horton, 223 U. S. 492, 58 Law. Ed. 1062, which case is referred to in the brief of opposing counsel. There are a number of cases decided by the supreme court of the United States both prior and subsequent to the enactment of the statute, which relate to assumption of risk and we will set out some of these cases later on in this discussion.
1. Was plaintiff' injured by defendant’s negligence!
2. If so, did plaintiff assume the risk of negligence!
3. Did plaintiff by his own negligence contribute to his injury?
To these inquiries an affirmative answer was given by the jury as to the first and third questions but the jury decided that the plaintiff did not assume the risk of injury. It seems that the jury were incorrectly instructed, in the respect that the defendant was held to absolute responsibility in furnishing safe instrumentality, without regard to reasonable care. The court through Judge Pitney, held:
“The distinction between assumption of risk and contributory negligence involves the notion of some fault or breach of duty on the part of the employee; and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use. On the other hand, the assumption of risk, even if the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employee. The risks may be present, notwithstanding the exercise of all reasonable care on his part. Some employments are necessarily fraught with danger to the workmen, danger that must be and is confronted in the line of his duty. Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These, the employee, is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinary prudent person under the circumstances would have observed and appreciated them. Citing: Choctaw, etc., Co. v. McDade, 48 Law Ed. 96; Schlepmer v. Buffalo Co., 55 Law Ed. 596; Texas, etc.’ Co. v. Harvey, 57 Law Ed. 582; Gila Valley, etc., Co. v. Hall, 232 U. S. 94.
Continuing: “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 representatives an assurance that the defect will be .remedied, the employees assumes the risk even though it arises out of the master’s breaph of duty.” Yazoo & Mississippi Valley B. B. Co. v. Wright, 59 Law Ed. 277.
• Another case which we think is illuminating on the same point is Illinois Central B. B. Co. v. Porter, 207 Fed. 313. - The denial of a motion for directed verdict is assigned as error,. on the ground that the risk which resulted in decedent’s injuries was the usual and ordinary risk incident to the method of employment, and that the assumption of such risk is not abrogated by the Federal Employers’ Liability Act. There was no error in refusing a peremptory instruction. In So. By. Co. v. Gadd, 207 Fed. 277, we held that even at common law the employee did not assume the risk of the employers’ negligence from an unusual and unexpected method of operation, that is to say not incidental to the ordinary method. Evidence that the work was being done at the time in question in the usual and ordinary way was not evidence that negligent conduct such as charged in this case was the usual and ordinary method of doing- the business. The natural inference would be that such negligence of a fellow trucker was outside the usual and expected. The risk of such negligence was not, in our opinion, assumed by decedent, and this without reference to any construction of the Employer’s Liability Act. The defendant’s, requests based upon the theory of such assumption of risk, welre, we think, properly refused as not supported by a proper construction of the testimony in that respect.”- Union P. R. R. Go. v. O’Brien, 40 Law Ed. 766; Rowland v. Chicago, etc., Co., 135 N. W. 156; T. & P. Ry. Go. v. Archbald, 42 Law Ed.; See, also, T. é P. Ry. Go. v. Behymer, 47 Law Ed. 905; Gentshoio v. Portland Ry. Co., 102 Pac. 614. Counsel cite the case of Baltimore & Ohio Railroad Go; v. Randle, 109, U. S. 478, 27 Law Ed. 1003. We find however on examination of this case that the facts are entirely dissimilar.
The case of Y. S M. V. R. R. Go. v. Mullins, decided in 1919, by United States supreme court, cited by Counsel announces a well-known principle of law which we are frank to concede but has no application to the facts in the instant case. Counsel cite Butler v. Frasee, 211 U. S. 459, 53 Law Ed. 281. The court said in this case: “But when the conditions are constant and of long standing and the danger is one that is suggested by the common knowledge which all possess, and. both the conditions and the dangers are obvious to the common understanding, and the employee is of full age, intelligence and adequate experience and all these elements of the problem appear without contradiction from the plaintiff’s own evidence, the question becomes one of law for the decision of the court.”
Much stress is laid by counsel on page 28 of the brief on Jacobs v. Railroad Co., 241 U. S. 229. The Jacobs case presents a very different state of facts from the case at bar. But counsel argue on page 31 of their brief that: “Plaintiff assumed the risk of any insufficient lighting for he was thoroughly familiar with all conditions in the yards and knew that switch lights would occasionally become extinct, and cite 4 Labatt on Master and Servant, section 1352 in support of this contention.
We do not think that the testimony in this case establishes such a frequency of happening of switch lights being unlighted as to constitute “a normal incident of the employment,” but rather in the language of counsel that “the switch lights would occasionally become extinct. ’ ’
Labatt on page 3782 of same work in further considering this principle says: “Such a principle obviously has no application to cases in which it .is shown that conditions like those which caused the injury, were as a matter fact, exceptional rather than normal.” The case of I. G. R. R. Go. v. Sivisher, 61 III. App. 611, cited in counsel’s brief in the note to the foregoing section of Labatt’s, presents a very different situation from the one at bar. The fireman in the Swisher case knew of this general condition, viz; that lamps were not supplied for switches, though his knowledge did not relate to or extend to a particular switch and he had no opportunity to observe the particular switch and the court held he assumed the risk of using this particular switch. In the case at bar the conditions are reversed, plaintiff knew of this general condition, viz: that all switch stands were equipped with lamps and these lamps w&re kept burning at night, except in those occasional instances where the lamps went out, that the safe and successful operation of defendant’s trains on those switches required that the lamps be kept burning at night.
The case of Kirho v. So. Ry., 89 S. E., cited by counsel, we think peculiarly applicable to the case at bar. The facts sufficiently appear from that part of the opinion which we deem pertinent and shall set out:
“Bearing in mind these rulings, this court, in its former decision of this case (16. Ga. App. 49, 84 S. E. 491), held that the jury should be allowed to' pass upon whether or not the employee, after discovering the insufficiency of light, assumed an extra risk by undertaking to perform his duties as a switchman. We held that this would he a question of fact for determination by a jury (assuming from the allegations in the petition that lights were burning when the plaintiff began to work), and that the question whether he assumed the extra care due to performing his dangerous duties in darkness or imperfect light would depend on how long the darkness or insufficient illumination existed immediately prior to the injury and upon the discovery of the insufficiency of the light was first made by him, and also upon his location at the time the light failed, and whether, under the exigencies of the situation, it was then possible for him to remove himself from the danger zone to a place of safety, or whether he was necessarily so engrossed in the efficient and proper discharge of his duties as to render him oblivious to a partial failure of the light.”
We will not undertake to set out the remainder of this opinion bu]t that part we have cited supports fully plaintiff’s contention in the case at bar.
As to counsel’s seventh proposition: “Defendant was not obligated to keep the switch lighted' at every moment during the night.”
The case of Armour v. Hahn, cited by counsel to sustain this position has reference to a stituation where the instrumentality of place is constantly changing its form, where a building is being constructed and the construction work being committed to the responsibility of the injured party and his fellow servants. This rule is both rational and just and any other would impose a hardship upon the master and make him an insurer, which under the law he is not. We have already discussed this authority.
Counsel says on page 41: “ The unlighted switch lamp is not the proximate or even the remote cause of plaintiff’s injury.
As we undertand the law relating to proximate canse this is generally a question of fact for determination by the jury. Counsel are here confusing again the question of contributory negligence with that of assumption of risk.
Again they say: “If plaintiff had used this light for the purpose it was intended to be used, he could have seen the switch stand several feet away.” If this be true, and we do not at all concede that the duty devolved upon plaintiff to go around with a little hand signal lantern looking for obstructions, in the natural area of his operations, his failure to do this at this time would only constitute contributory negligence .on his part and this would only operate to -diminish the amount of damages under the Federal Employer’s Liability Statute.
■ Again they say: “Even without a lantern or a light it was not so dark that he could not see the switch stand, when he was ten or fifteen feet from it immediately before he jumped from the side of the car.”
And the plaintiff himself testified on page 47 that ■it was so dark that he did not see the switch. On page 102 he testified the little hand lantern did not throw sufficient light for him to see the switch; that if it had, he would not have run into it.
We deny counsel’s statement that: “Plantiffs own evidence shows that he could see switch stand without any light ten or fifteen feet away.” His testimony is just to the opposite effect. Counsel says: “The duty of the defendant was simply to see that the switch stand was reasonably safe for the purpose it was erected and used, that is to indicate by the lights when the switch was open and when it was closed.” And further: “The master’s obligation to furnish reasonably safe and suitable instrumentalities is limited by the use for which the instrumentalites are designed, ’ ’ citing 3 LaBatt on Master and Servant, section 921.
We will not set out the entire section quoted in Counsel’s brief, but direct the attention of the court to the same authority and same section. In the case of Morrison v. Burgess, etc., Go., 47 Atl. 412, cited by counsel, the principle is illustrated; the court said in the course of its opinion: “Thé case does not show either that the defendants intended for the plaintiff to use this elevator as he did, or knew, or were in fault for not knowing, that he was likely to do so. A person is not in fault for not knowing particular facts, unless circumstances exist which would put a man of average prudence upon inquiry.
And no such circumstances were shown. If the jury had found that the defendants ought to have known that he would use it, they could then say a trap was set for him when the defendants left the gutter as they did; for that would be finding that they suffered a dangerous situation to exist upon a part of their premises which they knew their servants were accustomed to use in their work.”
We wish to say further in this contention, however, that it is plainly evident from the testimony in this record that the purpose of the switch light was likewise for the safety of the men engaged in the service of the defendant in and around it. We submit that a fair consideration of the testimony of the witnesses for plaintiff and defendant, establishes the fact that the safety of the men required that those switch lamps be kept burning in the nighttime.
Instruction Number 1: “The court instructs the jury for the plaintiff-'that if you believe from the testimony in this case that the defendant company negligently failed to have the switch light at number six switch lighted on the morning of September 14th, 1917, and further believe from the evidence that because of such failure on the part of the defendant to have such switch lamp lighted and as a proximate and direct result thereof plaintiff was injured unless he knew of the condition orr by the use of ordinary diligence could have known of the danger before he was injured, then you will find for the plaintiff and assess his damages in such sum as you believe the evidence justifies, not to exceed the sum sued for.”
Instruction Number 2: “The court instructs the jury for the plaintiff that the plaintiff in this ease only assumed the ordinary and customary dangers incident to his employment and the, court charges the jury that the plaintiff did not assume any risk arising from the negligence of the defendant, if you believe from the testimony that the defendant was negligent, unless he knew of the condition, or by the use of ordinary diligence could have known of the danger before he was injured.”
The following instructions were granted the defendant: Instruction number one (1) granted defendant is as follows: ‘ ‘ The court instructs the jury for the defendant that the defendant can only be held responsible to Dees for injuries received through its negligence, and the burden of proving such negligence is upon Dees to the same extent that it is upon any other plaintiff seeking to recover on the ground of negligence. Before the plaintiff can recover from the defendant by. reason of the fact that switch number six was not lighted the burden of proof is on him to show that the defendant knew or could have known of the existence of the fact that said lamp was not lighted, if such was a fact, and unless the plaintiff, Dees, had shown by a preponderance of the evidence that the defendant knew, or could have known by the exercise of reasonable diligence, that the lamp in question was not lighted at the time Dees claims to have received his injuries, then it is the duty of the jury to find for the defendant. ’ ’
Instruction Number Two (2) granted defendant is is as follows: “The court instructs the jury for the defendant that, if they believe from the evidence that the lamp on number six switch was inspected on the evening before the plaintiff claims to have been injured, by a suitable and competent inspector and was found to be in perfect condition and was properly lighted, and that within a short *time_ before plaintiff claims to have been injured something unknown and unforeseen had caused the light in said switch to go out, then the defendant would not be guilty of negligence as it would have exercised due diligence for the purpose of ascertaining whether the lamp was in reasonably good order for the purpose for which it was being used. If the defendant exercised such diligence as any ordinarily reasonable man would exercise in matters of that kind then it is not liable. The defendant was not an insurer of the plaintiff, Dees, regardless of its own diligence. All the law required of defendant with reference to keeping said lamp in reasonbly good repair for the purpose for which it was being used, was to exercise ordinary care and diligence to see that it was in good and proper order and use such diligence as a reasonably careful and prudent man would use under the circumstances. If defendant did this and the lamp on said switch from any cause “went out” then the defendant is not liable as the plaintiff assumed the risks of such hazards if any there were, and if the jury so believe from the evidence they will find for the defendant.”
Instruction number three (3) granted defendant is as follows: “The court instructs the jury for the defendant that negligence by the railroad company is essential before the plaintiff is entitled to recover, even as much as one cent. In the operation of a railroad absolute safety is unattainable and the defendant railroad in this case was not an insurer of the safety of plaintiff while he was engaged in switching cars in tlie yards. Negligence is the failure to do what a resonable and prudent person would ordinarily have done under the circumstances of the situation, or doing that which such a person under the existing circumstances would not have . done. Negligence always has relation to the circumstances in which one is placed and what an ordinarily prudent man would do or omit to do in such circumstance's. Wherefore, unless you believe from a preponderance, of the evidence that plaintiff Dees, has shown that the defendant failed to exercise ordinary care to furnish a reasonably safe place for the plaintiff to perform his duties, as under like conditions others engaged in similar or well regulated business are in the habit'of furnishing the defendant railroad company is not liable.”
Instruction number four (4) which was granted defendant is as follows: "The court instructs the jury for the defendant that when the plaintiff, Dees, entered the service of the defendant he assumed the extraordinary risks incident to his employment, if such risks there were, or risks caused by the defendant’s negligence, if any, which were obvious or fully known and appreciated by him. Therefore, if they believe from the evidence that the defendant negligently failed to light said lamp on switch number six and that the plaintiff knew or could have known, by the exercise of reasonable diligence the location of said switch and that it was not lighted, then he assumed the risk of .such danger, and if he was injured thereby the verdet of the jury will be for the defendant.”
Instruction number five (5) which was granted the defendant is as follows: "The court instructs the jury for the defendant that it was the duty of the plaintiff in conducting his work to exercise reasonable care to avoid injuries to himself. He was under a great obligation to provide for his own safety from such dangers as were known to him, or such as were discemable by ordinary care on his part, as the defendant was to provide a reasonably safe place for him to work. He should have taken ordinary care to learn of the dangers which were likely to beset him in the switching service in which he was engaged. He had no right to alight from a train in a place which he knew ivas dangerous or unsafe or which he might have known was dangerous or unsafe by the exercise of reasonable diligence. Therefore, if you believe from the evidence that the plaintiff knew or could have known by the exercise of reasonable care and caution- could have known that said switch was there unlighted and that he would probably strike said switch stand, and was injured thereby, then the defendant is not liable as the plaintiff assumed the risk of such, injury.”
It will be seen upon a reading of these instructions granted the plaintiff and defendant that the defendant was granted instructions more liberal than they were-entitled to under the law.
As to the court’s action in refusing to consider defendant’s instructions “A,” “B,” “C,” “D,” “E,” “F,” “Gr,” “H,” and “I,” set out in defendant’s special .bill of exceptions, on page 10 et seq: This ruling o£ the trial judge was harmless error: 1st. Because the defendant had already been granted instructions fully and fairly presenting its defense. 2nd. Instructions “A,” “E,” “F,” “Gr,” and “H,” are covered in the instruction granted the defendant and are but repetition. 3rd. Instructions “B,” “C,” “D,” and “I,” do not announce correct principles of law; are not accurate statements of the law of negligence as applied to this case.
We submit that the testimony that what we have set out in details hereinbefore establishes that the use the plaintiff was putting the switch lamp to was the natural and logical use that a switchman so situated would put it to. As to counsel’s citation of LaBatt, Vol- 3, page 2457, we wish to say that the general principle announced on this page has the limitations imposed upon it hy the distinguished author that will be found on page 2462 which is a continuation of the same section, to-wit: 921.
As to counsel’s criticism of plaintiff’s instruction number 2 counsel confuse ordinary and extraordinary risks incident to employment. We feel that this in struction is not in conflict with any of the authorities cited. This criticism, however, is hypercritical as any qrror whatever in the announcement as to ordinary and customary dangers is cured by the statement in the instruction that the plaintiff would assume the risk arising from the negligence of the defendant either if he knew of that negligent condition or by the use of ordinary diligence could have known of the danger-before he was injured. See Boldt v. By. Go., 245 TJ. S. 441.
As ' to counsel’s contention that: “Verdict of the jury grossly excessive. Jury influenced by prejudice, passion and irrelevant and incompetent evidence and the remarks of the judge with reference to his inflexible rule relating to the number of instructions to be given.”
The testimony in this case shows that the plaintiff suffered what is technically known as a double hernia or what is generally known as a rupture on both sides, and that he received this injury as the result of defendant’s negligence. Plaintiff’s testimony was to the effect that he has suffered a great deal on account of this injury and suffers yet, that it has been necessary for him to wear a truss which confines the hernia on each side. The testimony further shows that the plaintiff was confined to his bed some eight or ten days and that after he became able to get out, that he undertook again his duties in defendant’s yards, and that he was able to perform that part of his duties which called for physical exertion and effort only by the assistance of his fellow workers; that he was unable again to do any heavy work. The surgeon who testified as to plaintiff’s condition, testified, that hernias are serious conditions, that they are permanent without operation, that an operation does not always remove the condition, though in a majority of cases it does; that an operation would probably entail danger to his life and that there is no chance for plaintiff’s recovery Avithout operation; that his .condition would be a draAvback in doing work and the testimony now shows that plaintiff is unable to do work requiring much physical effort. We deny the imputation that the jury that assessed plaintiff’s .damages was actuated either by passion or prejudice or influenced by the remarks of the court with reference to the limitation upon the instructions.
Wherefore Ave say in conclusion that the verdict of the jury is supported by the testimony and is commensurate with the injury, and should accordingly, be affirmed by this honorable court, and the judgment based upon it should be affirmed by this honorable court.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
