Memorandum opinion by direction of the court, by MR. CHIEF JUSTICE WHITE.
While this second appeal rests on the Employers' Liability Act, there is no contention as to its meaning (207 Fed. Rep. 281); hence we need only determine whether plain error was committed in relation to the principles of general was involved.1
Error in holding that the facts afforded no ground for the application of the doctrine of assumption of the risk is the sole contention pressed in argument. A freight train
of which the deceased was engineer, proceeding southward on a lead track, approached or was traversing a railroad yard. Ahead -- the distance not being specifically defined -- on a yard track connecting with, and to the left of, the lead track there stood some loaded coal cars which, while visible to the engineer from the right side of the engine, became more and more shut off from his view as the train advanced. The engineer asked the fireman, who was on the left side of the engine and therefore in full view of the cars, whether they were clear of the lead track and was answered that they were. There is a dispute as to whether a head brakeman was riding in the cab and whether subsequently, if there, he called the engineer's attention to the fact that the coal cars were not clear. But there is no dispute that the engineer again asked the fireman who answered that the cars were not clear and jumped from the locomotive. The engineer, having shut off his power, stepped to the left side where from the collision which immediately resulted he received the injuries from which he subsequently died.
Whatever may be the difficulty of distinguishing in many cases between the application of the doctrine of assumption of risk and the principles of contributory negligence, that there is no such difficulty here is apparent since the facts as stated absolutely preclude all inference that the engineer knew or from the facts shown must be presumed to have known that the coal cars were protruding over the track on which he was moving and deliberately elected to assume the risk of collision and great danger which would be the inevitable result of his continuing the forward movement of his train.1a
The impossibility of deducing assumption of the risk from the facts stated is cogently demonstrated by the arguments advanced to establish that the risk was assumed. Thus it is urged that as in a railroad yard there was danger to arise from the protrusion of cars negligently placed by employes of the company, a danger which the engineer must have known might arise, therefore he assumed the risk of such danger. And again the argument is that even although the engineer did not know of the protruding cars and therefore did not consciously incur the great risk to result from the collision, yet as by proper precaution he could have discovered the fact that the cars were protruding, he must be considered to have assumed the risk which resulted from his want of care. But both these arguments have no relation to the doctrine of assumption of the risk and only call for the application of the principle of contributory negligence or of fellow servant.
1. Chicago Junction Ry. v. King, 222 U.S. 222; Seaboard Air Line v. Moore, 228 U.S. 433; Chicago, R. I. & Pac. Ry. v. Brown, 229 U.S. 317; Southern Railway v. Gadd, 233 U.S. 572, 577. 1a Union Pacific Railway v. O'Brien, 161 U.S. 451; Texas & Pacific Railway v. Archibald, 170 U.S. 665; Texas & Pacific Railway v. Behymer, 189 U.S. 468; Choctaw, Oklahoma &c. R. R. v. McDade, 191 U.S. 64; Schlemmer v. Buffalo, Rochester &c. Ry., 205 U.S. 1, 12; S. C., 220 U.S. 590; Seaboard Air Line v. Horton, 233 U.S. 492, 503-504.