The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 16
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256 FEDERAL REPORTER'
he was to receive extra pay. He says that he had been working in
the "pitch dark" since a quarter of 5 or half past 4, and that then he
met the foreman and asked for a lantern, because it was dark, and he
told the foreman it was "kind of dangerous," to which the foreman
replied, to go over to the office and get a light, if there was one there.
"'If there isn't,' he said, 'you take one to-morrow.' I did not get a
light." Further, defendant in error says that he did not go to the
office, but that the foreman went there, and, after.the foreman told him
that there was no light, then the defendant in error went to work with
hi's fellow laborer, Paladino.
A large number of witnesses called by the plaintiff in error disput-
ed the claim of 'the defendant in error that the place of work was dark,
and testimony was adduced indicating that along the freight platform
adjacent to the cars there was an ample system of electric lighting,
which the witnesses said was in good repair and lighted at the time of
the accident to defendant in error.
[1, 2] But; assuming the condition, as we muqt upon this appeal,
to be as the defendant in error claims, we are of the opinion that
he cannot' succeed, for we are obliged to hold that he assumed the
risk as a matter of law. The District Judge was requested to charge
the jury that the defendant in error assumed the risk as a matter of
law, by requests couched in varying phraseology, and in each instance
denied the request, leaving the question of assumption of risk with
the'jury as one of fact.
The defendant in error, in narrating his own experience, stated that
he had worked for 3 years in a coal mine, and then 12 months as a
railroad track laborer, and 3 months as a railroad laborer, loading and
unloading rails for the Lehigh Valley Railroad Company, and then
about 2 years for his present employer, which time was largely spent
in doing work similar to that which he was doing on the night in ques-
tion. Therefore he must be charged with a thorough knowledge of
the details of the work of loading and unloading cars, the location
of the freight house, and the railroad trackage thereabouts at the East
Buffalo freight yard. This must necessarily include knowledge that
the freight cars, while on parallel tracks, would have a space of about
30 inches between them, and that to misstep might result in falling
into said space. He seems to have fully appreciated this danger, as
also the danger of working about a space of this kind without a light.
He says he requested a light, and was told that none was available,
and he then went back and resumed his work, and, if it be true that
at the time and place it was "pitch dark," this knowledge was better
known to him than to his master. After being refused a light, he
said he continued without a promise or assurance of safety, or with-
out assurance that a light would be forthcoming within a reasonable
time. It appears that he resumed his work without further protest
or coercion of any character on the part of his foreman. Indeed, he
describes this work as "extra work" or extra hours of service, and he
was concerned about his own safety. He had the right to refuse to
continue on in the extra work until the necessary light had been fur-
nished. If the plaintiff in error's version of the accident be true, he
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/30/: accessed May 26, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.