
    KANSAS CITY, M. & O. RY. Co. et al. v. COSTA.
    No. 6708
    Opinion Filed Feb. 5, 1918.
    (170 Pac. 892.)
    1. Negligence — Federal Employers’ Liability Act — Contributory Negligence — Dam-agés.
    The requirement of federal Employers’ Lir ability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1916 secs, 8657-8665), that diminution of damages toy the jury in case pf an emiployejs contributory negligence shall be in proportion to the amount of negligence attributable to such employe, means' that where the causal negligence is attributable partly to the carrier and partly to the Employe, recovery cannot be had for full damages, “tout only for a diminished ■sum hearing the same relation to the full damages that the negligence attributable to the earner bears to the negligence attributable to both; the purpose being to exclude from recovery a proportional part of the damages corresponding to the employe's contribution to the total negligence.”
    
      2- ¡Master and Servant — Injuries to Servant — Federal Employers’ Liability Act —Assumption of Risk.
    “It is error to instruct a jury, in an action for damages for personal injuries, that a servant does not assume suck risks as are created by the master’s negligence. The true rule in this regard is that the servant assumes all the ordinary risks of his employment which are known to him, or which , ould have been known with the exercise of ordinary care to a person of reasonable prudence and diligence, under like circumstances : and with reference to risks not naturally incident to the occupation, but which may arise out of the failure of the master to exercise due care in the performance of some duty owing by him to the servant, the rule is that the servant does not as sume such risks until he becomes aware of such negligence of the master and of the risks so arising therefrom, unless the defect and risk are so apparent and obvious that an ordinarily careful person would observe the one and appreciate the other.”
    (Syllabus by Bleakmore, 0.)
    Error from District Court, Major County ; James TV. Steen, Judge.
    Action by Lula Costa, administratrix of the estate of Burley D. Costa, deceased, against the Kansas City, Mexico & Orient Railway Company and J. O. Davidson and others, receivers. Judgment for plaintiff, and defendants bring error.
    Reversed, and cause remanded for a new trial.
    Jno. A. Eaton, Dudley W. Eaton, Hyden J. Eaton, and E. W. Eischer, tor plaintiff» in error.
    John V. Roberts and Garber & Kruse, for defendant in error.
   Opinion by

BLEAKMORE, C.

This is an action under the federal Employers’ Liability Act (35 Slat, at L. 65, c. 149, Comp. Stat. 1916, §§ 8657-8665), commenced in the trial court by Lula Costa, administratrix of the estate of Burley D'. Costa, as plaintiff, against the Kansas City, Mexico & Orient Railway Company, a corporation, J. O. Davidson, E. Dickinson, and M. L. Turner, receivers, as defendants, seeking recovery on account of the death of her intestate, alleged to have resulted from the negligence of defendants' while employed by them. There was a judgment for plaintiff, and defendants have appealed. The parties are referred to as they appeared below.

Defendants were operating a line of railway in interstate commerce, and the deceased, Costa, was one of their employes when, on June 21, 1912, he suffered injuries resulting in his death. As to his employment and the circumstances, of th» occurrence of the injury occasioning his death, the elvidencc shows that from. Ju»e 7 to June 12, 1922, defendants were engaged in burning the vegetation along their right of way from Wichita, Kan., to a point about a anile north of Cherokee, Okla., using a car equipped for that purpose known as a ‘‘weed burner,” which with an engine and other cars composed a work train, in charge of a conductor. J. D. Drunk, defendants’ road-master, also accompanied the train. Deceased was employed in the operation of the weed burner, which is described by the conductor as follows:

“It is an iron-bodied ear, set upon two pairs of wheels, length of body approximately 17 or 18 feet; on each side of the car and in front, what we call the front end, and level with the floor of the car, was situated two reservoirs, and, one on the front end, for the purpose of holding gasoline, and I believe they contained three barrels each. On the rear end of the car where the burner was located- the burner was constructed of cast iron; the main portion was attached rigidly to the frame-There were two wings, one on each side, I hat could be raised and lo wered in order to pass by obstructions such as cattle guards and such obstructions along the tracks. The wings were operated by means of air pressure from the engine. The wings to the burner contained coils about 1 1-2 or 1 1-4 inch gas pipe that were perforated. The coils were underneath the burner and the wings. On top of the tamer were other pipes connected with the coils underneath, and in those pipes were holes 6 or S inches apart, through which the gas, after being generated into gas, the flame was forced down by air pressure on the weeds and that destroyed them. I believe that is a general description. Q. How were these wings raised and lowbred when the air from the engine was not used? A. Well, it was very difficult. There was an upright staff with a wheel on top something like a brake wheel and a ratchet at the bottom connected with a coil -if wire rope that wound around that was supposed to lower and raise the wings, but it Kyas difficult to do that; the wing had to be assisted from the outside: the weight of the wing was too great. Q. What was the weight of the wing in your best judgment? A. I am not prepared to say. The wing was cast iron and possibly might weigh 350 or 400 pounds, maybe more. Q TVhen they were being operated, how close to the ground were they carried? A. Well, they were set so as to clear the main bridles or switches and connecting side tracks: it was the expectation that they would clear obstructions of that height. Q. IIow far would you say they would be carried above the ends of the crossrties? A. Six or 7 inches was the general position, and ihere was sometimes when they were elevated a little higher. Q. ¡Wasn’t it possible for one man to raise one of 1 líese wings .-by use of this -wheel, of this rachet. or would lie have to have assistance from -some one on the ground lifting on the wings? A. A strong man with a club might do it- Q. That is, -to put a club inside of the pully and pull it? A. Yes, sir. O Did you ever see one man de that? A'. I don’t believe I ever have.”

•On, the day Costa met hiis death the work train in question was run upon a side track at Cherokee to permit the passing of a passenger train, and while on the side track the tanks on the weed burner were filled with gasoline, the engine and other cars were coupled to it, forming a train with the weed burner -at the front or north end, it being the purpose to return and resume destroying the vegetation at the point where that operation, had been interrupted. During (hie -period of stoppage the left or west wing of the weed burner was lowered, and Costa was engaged in making some mino» repairs or adjustments thoireoii No- one connected with the operation of the train seems 1o have observed whether this wing was raised after Costa completed his work. The conductor further testified:

“Q. Did you make any inquiry whether or not they were ready to move? A. When I came up there from the depot with the orders, the engineer was sitting in the door of the caboose, and the head brakeman and Mr. Drunk were working around the burner : (hey were handling the hose that we. used lo tap the oil from the tank car into the reservoirs, and they were two or throe oar lengths alway, and 1 halloed and asked (hem how they were iixed, and answer was made by Mr. Drunk that they were ready or would be ready shortly. Q. Then you pulled out? No; I gave the orders to engineer Trumbo and went into the caboose; I had bought (lie home paper, and I went into the caboose, ns my help was not needed, and read the newspaper. Mr. Trumbo left the caboose immediately upon that information and got on the engine, and within a few minutes — ¡ I don’t know how long— they coupled up and started off. Q. Do you, knolwi who was on the weed burner at the time after you moved out up until the time of the derailment? A. I don’t know of my ’own knowledge: T only know what I was told. Q. Who.was in the caboor© with you, if you remember? A. Well, the rear brakeman rode to the depot and got off to go to town to buy some supplies for the com-niisary department; after that time I was alone until the accident happened. Q. Do vou know where the head brakeman was? A. I only have his statement.: I don’t know of my c-Mb knowledge.”

The cram was started, Costa and the road-master Deling on the weed burner, and after it had proceeded novlh -some 1,500 or 2.000 feet, the humor was derailed, and gasoline which \va« thrown-ever Costa was ignited, burning him to such an extent that he died shortly thereafter.

The roadmaster also testified :

“Q. You may state, Mr. Drunk, whether or not Die wings on the weed burner wer* down when you got on the weed burner. A. I don’t -know. Q. Well, didn’t you observe? A. No; T wasn’t in a position to see but only one wing, and it was up. Q. Well, you could see whether the wings were up or down when you were on the weed burner? A. 1 didn’t: I could nave. Q. Wa» there anything to obstruct y-ar view standing on the weed 'burner when you started out? A. Ni: sir. Q. Was (here anything to obstruct the view of the fireman or engineer working cast toward the weed burner? A. No, sir. Q. That clear view remained clear all the way until the time .if the derailment? A. Yes, sir. Q. And it remained on beyond that point? A. Yes. sir. Q. What were you doing at the time of the derailment? A. I don’t remember. Q. What was Costa doing? A. 1 don’t remember that 1 don't remember a thing that was going on after we left the switch. ’

At the close of the evidence on behalf of plaintiff, defendants interposed a demurrer thereto, which was overruled, and at the concusión of ail the endone» defendants moved for a directed verdict, which motion was likewise overruled.. The action of the court in this regard is assigned as error, it being insisted that the evidence adduced was insufli» ent to take tile ca-e to the pnj. Again, it is urged in the briefs that the deceased, Bur-ley D. Cosía, was not-engaged in interstate commerce at r,he time of his injury, and therefore the action is not main-tainahe under rlhe federal Employers' T.ia-niliry Act. On oral argument the latter contention was abandoned.

If is further contended -that the injuries suffered by plaintiff's intestate resulting- in his death were due solely to bis own negligence, which consisted in his- failure to raise the wing of the weed burner by means of one of the devices provided therefor; that there -was no prima iy negligence shown on the part of defendant, and. inasmuch ns the liability imposed by the provisions of the federal Employers’ Dinbility Act is conditioned on the negligence of the carrier, no recovery can ho hack

One of the allegations of the petition is that, the train was negligently started when a wing of the weed burner was down and in Mich position as to strike the protruding surf .ico of tlie ground or any obstruction on the right of way. The evidence tends to establish, as contended by defendants, that the wing of the weed burner, lowered by Costa, and which was permitted to remain in that position, did strike upon the right of 'way, with tlie consequent derailment and hiiur'os produeuv0; Ids death; lmt the 1111-cuntroverted evidence also shows that there was a Cienr and unobstructed view of the weed burner and of the right of way for some 1.500 or 2,000 yards from the place of sinning to the point of derailment, an.I that neither the engineer .fireman, brak-"-m.-:n. road master, nor conductor even looked to ascertain wlwrher the wings were in sub position to render the weed burner unsafe when set in motion. In fact, for some minutes before and at the time when the :rain was starred, the conductor in charge who gave the orders for its movement was engrossed in a newspaper and oblivious of all else.

It is conceded that Ooria’s death was caused by negligence. if it respited in whole or in part from the negligence of their employes, defendants are liable. We are of opinion that the jury might reasonably have concluded from the evidence that such causal negligence was attributable liarily to Costa and partly to the employes of defendants.

,By virtue of the federal Employers’ Liability Act (which, where applicable, supersedes all state laws on the subject), in actions to recover damages for personal injuries to an employe; or where such injuries have resulted in: his death, the fact that the employe may have been guilty of contributory negligence does- not bar recovery, but the damages must be diminished by the jury in proportion to the amount of negligence attributable to such employe-Obviously on the theory that the jury might reasonably find from the evidence that the injuries resulting in the death of Costa were caused by the concurring negligence of defendants and himself, the court instructed relative to the diminution of damages as follows:

"The jury are instructed that if you find from the evidence that Burley I). Costa was guilty of contributory negligence resulting in injuries causing his death, yet that fact will not bar a recovery by the plaintiff in this case, but the damages must, be diminished by the jury in proportion to the amount of negligence attributable to the said Bur-ley D. Costa.
•“You are instructed that it was the duty of Burley D. Costa to exercise reasonable care for his own safety and protection while in the discharge of his duties in the employ of the defendants, and if 'you find from the evidence that lie failed to exercise such care and that his failure to do so was the direct and proximate cause of the Injuries resulting in his death, without negligence contributed thereto on (he part of the defendants, their agents and employes, then the plaintiff would not be entitled to recover in this action, and you should, find for the defendants. If, however, you find that the defendants, their agents or employes, were negligent as charged in plain-i It’s petition, and that the deceased, Burley 1). Costa, wias also negligent, and that his negligence contributed to his injuries and death, such negligence on his part would not bar ' plaintiff’#! right to recover hen ein, but (he. damage; winch you find from tlie evidence plaintiff is entitled to shcu.tl be diminished by you in your verdict in proportion to the amount of negligence which you find from tlie evidence Is attributable to the cieceascd.”

Const: uing the provision of section 3 of the federal Employers' Liability Act (U. S. Comp. St. 1916, § 8659), declaring:

“The -fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages -shall be diminished by the jury in proportion to the amount of negligence attributable to such employe”

—the Supreme Court of the United States, in Seaboard Air Line Ry. Co. v. Tilghman. 237 U. S. 499, 35 Sup. Ct. 653, 59 L. Ed. 1069, stated:

“It means, and can only mean, as this court has held, that, where the causal negligence is attributable partly to the carrier and partly to the injured employe, he shall not recover full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the carrier bears to the negligence attributable to both; the purpose being- to exclude from the recovery a proportional part of the damages corresponding to the employe’s contribution to the total netgligenee, Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 122, 57 L. Ed. 1096, 1101, 33 Sup. Ct. Rep. 654, Ann. Cas. 1914C, 172; Grand Trunk Western Ry. Co. v. Lindsay, 233 U. S. 42, 49, 58 L. Ed. 838, 842. 34 Sup. Ct. Rep. 581. Ann. Cas. 1914C 168.”

The italicized portion of ' the ins-truo-tions to which exception is; taken is substantially in tlie language of the statute, and in our opinion the rights of defendants were in no way prejudiced thereby.

One of the elements of the negligence relied upon by plaintiff at the trial was alleged defects and insufficiencies in the weed burner. As to this feature of the case defendants pledded and sought to establish that if such conditions existed, Oosta was fully advised thereof, and assumed all risks incident thereto. Upon the question thus presented the court instructed the jury:

“* * * The gervant does not assume the risk of being injured by his master’s negligence, and the master’s negligence is not recognized as a risk incident to the servant’s employment. The risks which the servant assumes are all those risks ordinarily incident to the employment and such as are liable to arise from defects which are patent and obvious to a person of his experience and understanding, but not such risks as may be due to the failure of the master to exercise reasonable care and prudence. In other words, the risks the servant assumes are only such risks as remain incident to the employment after the master has exercised reasonable care to provide reasonably safe instrumentalities- in the 'Way of machinery and appliances, and reasonably competent fellow servants who will exercise reasonable care in the performance of their duties, and a reasonably safe place for the servant to perform the work he is hired to do.”

Defendant complains, and we think rightly, that such charge involves a misstatement of the doctrine of assumption of risk. The correct rule, applicable in the instant case, is announced, and- the federal and state authorities collated, in the well-considered opinion in C., R. I. & P. Ry. Co. v. Hughes, 64 Okla. 74, 166 Pac. 411, as follows:

“It is error to instruct a jury in an action for damages for personal injuries that a servant does not assume such risks as are created by the master’s negligence. The true rule in this regard is that the -servant assumes all the ordinary risks of his employment which' are known to him, or which could have been known with the exercise of ordinary care to a person of reasonable prudence and diligence, under like circumstances: and with reference to risks not naturally incident to the occupation, but "Which may arise out of the failure of the master to exercise due care in the performance of some duty owing by him to the servant, the rule is that the servant does not assume such risks until he becomes aware of such negligence of the master and of the risks arising therefrom, unless the defect and risk are so apparent and obvious that an ordinarily careful person would observe the one and appreciate the other.”

-On account of the error in charging the jury as above set forth, the judgment should be reversed, and the cause remanded for a new trial.

.By the Court: It is so ordered.  