Spinden v. Atchison, Topeka & Santa Fe Railway Co.

Citations

• 95 Kan. 474
• 148 P. 747
• 1915 Kan. LEXIS 239

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Federal Employer’s .Liability Act — Defense of Assumption' of Risk. In an action brought under the federal employer’s liability act it is error to instruct that the defense of assumption of risk, with respect to a particular task, can only be-established by showing that its danger was so glaring that a person of ordinary prudence would not have attempted it.</p> <p>2. Same — Repairing Track Suspended Over Washout — Findings Held to Exonerate Defendant. An employee of a railroad company lost his life by falling from a track which hung-suspended over a washout for a distance of some ninety feet,, while assisting in preparations for its repair. In an actiont by his administratrix, charging the company with neglect in several respects, the jury returned a verdict for the plaintiff,, but in reply to a question requiring them to state the particular negligence that caused the death they answered that it. was the failure to give the decedent proper instructions. The only neglect pleaded in this regard was the omission to instruct the decedent how to walk on the ties — to step upoifc. them close to the rail. Specific findings were made that the foreman, after examining the bridge, stated in the presence of the decedent that the ties were unsafe to walk upon; that he warned the workmen to plank the ties, as they were unsafe; that he directed them to do this by pushing the planks ahead of them on the rail, then turning them over on the ties, one on each side of the rail. Held, that the findings require a judgment for the defendant.</p>