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: 17
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DELAWARE L. & W. R. CO. V. TOMASCO 17
was injured because of a danger which he knew and appreciated, and
which he asked the foreman to gtard against by supplying him a lan-
We are of opinion that the District Judge, on these facts, was ob-
ligated to hold the defendant in error assumed the risk as a matter
of law, and the failure to instruct the jury as requested was error.
Section 4 of the Employers' Liability Act of April 22, 1908, c. 149,
35, Stat. 65 (Comp. St. 8660), provides that in any action against a
common.carrier, under or by virtue of any of the provisions of the
Employers' Liability Act, to recover damages for injuries to or death
of any of its employes, such employee shall not be held to have assumed
the risk of his employment in any case where the violation by such com-
mon carrier of any statute enacted for the safety of employes contrib-
uted to the injury or death of such employee. This applies to the so-
called Safety 'Appliance Act, and hence would not debar the plaintiff in
error from insisting upon the defense of assumption of risk, just as
it may be established under the rules at common law as a complete
bar in an action for injuries to the person of an employee. Boldt v.
Pennsylvania R. Co., 245 U. S. 441, 38 Sup. Ct. 139, 62 L. Ed. 385;
Seaboard Air Line Ry. v. Horton, 233 U. S. 493, 34 Sup. Ct. 635, 58
L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475.
While the master here was bound to furnish the employs with a
proper and safe place in which to perform his work, and in this it was
the duty of the master to see that the place of work was properly light-
ed to enable it to be done with reasonable safety, it is also true that
the servant assumed the obvious risks of his employment. The rule
is well settled that if the servant knows of the failure of the master
to completely discharge his duty to exercise ordinary care to furnish
a reasonably safe place in which to work and sufficient servants or
reasonably safe appliances with which to work, and if he appreciated
its effect, or if the failure and'its effect are obvious or plainly observ-
able, and he continues in the employment without objection, he elects
to assume the risk of them and is precluded from a recovery.
We therefore conclude upon this record that the defendant in er-
ror is affected by the established doctrine that an employee, with knowl-
edge of the danger, which he fully appreciates, and of which he is con-
clusively presumed to have assumed the attendant risk, cannot re-
cover, if he continues and is injured. Butler v. Frazee, 211 U. S.
459, 29 Sup. Ct. 136, 53 L. Ed. 281.
The exceptions to the requests to charge present error which requires
a reversal of the judgment below.
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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/m1/31/: accessed November 24, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.