Dutrey v. Phila. & Reading Ry.

Citations

• 265 Pa. 215
• 108 A. 620
• 1919 Pa. LEXIS 528

Syllabus

<p>Negligence — Railroads—Federal Employers Liability Act — RisTe of employment — Obvious dangers — Burden of proof — Contributory negligence — Case for jury.</p> <p>1. Except as to injuries resulting from the violation of statutes, the common law doctrine of assumption of risk remains as a compíete defense in an action under the Federal Employers Liability Act of 1908.</p> <p>2. The employee assumes, as a risk of his employment, such dangers as are normally and necessarily incident to his occupation, and a workman of mature years, is taken to .assume them whether he is aware of their existence 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. They are the unusual, extraordinary and unexpected acts, and the employee is not to he treated as assuming such risks until he becomes aware of their existence, unless the act or risk is so obvious that an ordinarily prudent person would have observed and appreciated them.</p> <p>3. It is only in a clear case that the question of the assumption of a risk is one of law for the court, and where there is doubt as to the facts, or as to inference to be drawn from them, it becomes a question for the jury. The burden of proof as to the assumption of risk is on the defendant.</p> <p>4. The servant assumes the risks incident to the negligent acts of the officers, agents and fellow employees of the master, but he does not assume the risks of unusual and extraordinary acts of negligence.</p> <p>5. In an action against a railroad company under the Federal Employers Liability Act to recover damages for the death of plaintiff’s husband, the case is for the jury where the evidence, although in some essentials flatly contradicted, tended to show that the deceased had been employed for three or four years as a repairman; that, at the time of the accident, he was engaged in oiling a switch in defendant’s yard; that in doing so he was compelled to lean