Southern Ry. Co. v. Carr

Citations

• 153 F. 106
• 82 C.C.A. 240
• 1907 U.S. App. LEXIS 4382

Syllabus

<p>1. Master and Servant — Injuries to Servant — Railroads—Negligence of Master.</p> <p>Where no injury had ever occurred on account of the eaves of a house projecting slightly over a railroad track for 15 years, the eaves being of a permanent character, and not liable to become impaired by use, the railroad company was not negligent in permitting them to remain in such condition.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 22A-227.]</p> <p>2. Same — Assumed Risk.</p> <p>The eaves of a house had slightly projected over a railroad spur track for over 15 years, during which no injury had occurred. There was ample room on top of the cars for a brakeman, in. the exercise of ordinary care, to pass along the running board and manipulate the brakes without incurring any danger from the eaves; but plaintiff, though knowing the condition of the eaves, took a position on top of a car with his back toward the house, in which situation he was struck by the eaves, knocked from the ear, and injured. Held, that the danger was an open and visible one, which plaintiff assumed.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 556. ■ '</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>3. Same — Instructions—Contributory Negligence — Assumed Risk.</p> <p>In an action for injuries to a servant, the court charged that, in determining whether an employe has exempted his employer from liability in any particular case because of alleged contributory negligence or assumed risk, the jury should consider the exigencies of his position and all the circumstances of the particular occasion. Held, that such instruction was objectionable for failure to explain the difference between the doctrine of contributory negligence and assumption of risk.</p> <p>4. Same — Defective Appliances — Evidence.</p> <p>In an action for injuries to a brakeman, proo