
    (No. 5368.
    Decided July 29, 1905.)
    James Lee, Appellant, v. Northern Pacific Railway Company et al., Respondents.
      
    
    Master and Servant—Negligence—Assumption oe Risk—Hauling Hand-Car Behind Train. A bridge carpenter of six months experience in railroad work who undertakes to “hook on” or haul a hand-car behind a freight train by hand, assumes the risk of being jerked off the car, as an open and apparent one, although he acts upon the orders of his foreman, under earnest protest against so doing, and upon assurances that it was safe; since the undertaking was so extremely hazardous as not to justify his reliance upon the master’s superior knowledge or to forego the risk of discharge on disobedience of the order.
    Appeal from a judgment of the superior court for King county, Morris, J., entered April 26, 1904, upon, the verdict of a jury rendered in favor of the defendant by direction of the court, dismissing an action for personal injuries sustained in hauling a hand-car behind a freight train.
    Affirmed.
    
      Walker & Munn, Robert Welch, and R. W. McClelland (George H. Walker, of counsel), for appellant.
    It is only in very rare instances where contributory negligence and assumed risk are questions of law. McQuillan, v. Seattle, 10 Wash. 464, 38 Pac. 1119, 45 Am. St. 799; Graham v. Mc-
      
      Neill, 20 Wash. 466, 55 Pac. 631, 72 Am. St. 121, 43 L. R. A. 300; Steele v. Northern Pac. R. Co., 21 Wash. 287, 57 Pac. 820; Hencke’ v. Babcock, 24 Wash. 556, 64 Pac. 755 ; Jordan v. Seattle, 26 Wash. 61, 66 Pac. 114; Mischke v. Seattle, 26 Wash. 616, 67 Pac. 357; Christianson v. Pacific Bridge Co., 27 Wash. 582, 68 Pac. 191; Crooker v. Pacific Lounge etc. Co., 34 Wash. 191, 75 Pac. 632; Jancko v. West Coast Mfg. & Inv. Co., 34 Wash. 556, 76 Pac. 78; Currans v. Seattle etc. R. & Nav. Co., 34 Wash. 512, 76 Pac. 87; Allen v. Northern Pac. R. Co., 35 Wash. 221, 77 Pac. 204; Thoresen v. La Crosse City R. Co., 87 Wis. 597, 58 N. W. 1051, 41 Am. St. 64. The servant’s duty to obey was imperative, and he had a right to rely upon assurances of safety. Keating v. Pacific Steam Whaling Co., 21 Wash. 415, 58 Pac. 224; Christianson v. Pacific Bridge Co., supra; Coan v. Marlborough, 164 Mass. 206, 41 N. E. 238; Green v. Western American Co., 30 Wash. 87, 70 Pac. 310; Goldthorpe v. Clark-Nickerson Lum. Co., 31 Wash. 467, 71 Pac. 1091; Grout v. Tacoma Eastern R. Co., 33 Wash. 524, 74 Pac. 665; Slack v. Harris, 200 Ill. 96, 65 N. E. 669; Illinois Steel Co. v. Ryska, 200 Ill. 280, 65 N. E. 734; Malott v. Hood, 201 Ill. 202, 66 N. E. 247; Thomas v. Raleigh etc. R. Co., 129 N. C. 392, 40 S. E. 201; Thompson, Adm’r v. Chicago etc. R. Co., 14 Fed. 564; Atchinson etc. R. Co. v. Bancord, 66 Kan. 81, 71 Pac. 253; Gulf etc. R. Co. v. Newman (Tex. Civ. App.), 64 S. W. 790; International etc. R. Co. v. Gaitanes (Tex. Civ. App.), 70 S. W. 101; Bane v. Erwin, 172 Mo. 306, 72 S. W. 522; Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N. E. 876; Chicago etc. R. Co. v. Lunchstrom, 16 Neb. 254 20 N. W. 198, 49 Am. Pep. 718.
    
      James F. McPlroy and B. S. Grosscup, for1 respondents.
    
      
       Reported in 81 Pac. 834.
    
   Poot, J.

Appellant was working for respondent railway company, along its line, as a bridge carpenter, and had been so doing for a period of six months prior to the accident hereinafter mentioned. On the 5th day of December, 1901, while engaged as aforesaid with, a crew of men under the company’s foreman, respondent Herndon, near a place called Deming, appellant and said crew were directed by tbe foreman to get upon a band-car and “book on” to tbe rear of tbe caboose of a freight train, to be hauled to Sedro-Woolley, another station on said railroad line. The “hooking on” was by means of two men on the hand-car catching hold of the rear of the caboose with one hand and holding to the handle bar of the hand-car with the other, and thereby pulling said hand-car along behind the train. When the foreman told appellant to do this, the latter, suspecting it to be dangerous, earnestly protested against so doing; but being assured that it was safe, and that it was necessary in order to reach Sedro-Woolley in time, as required by the company, he complied with said order. While they were so “booked on” and being drawn along by said freight train, appellant was, by tbe motion of said train, -“jerked or hurled” from the hand-car to the ground, sustaining serious injuries. He brought this action to recover damages therefor. The first trial resulted in a verdict in his favor. A new trial was granted. Upon the second trial, at the close of appellant’s case, a challenge to the evidence, and a motion for judgment in favor- of dA fendants, were interposed and sustained by the court. From this judgment appeal is taken to this court.

Appellant’s counsel argue, with exceptional ability, that the case was one for a jury, and cite numerous decisions in support of their contention. Many of these cases, however, involved questions of contributory negligence rather than astsumed risk. Theoretically there is a clear distinction between these defenses. Practically, there is sometimes a marked difference and sometimes not. The case at bar involves a question of assumed risk. The law in this state is firmly established to the effect that a servant assumes the risk of obvious and apparent dangers attendant upon his work. When appellant was told to “hook on” to the caboose, did he know, or by the exercise of ordinary intelligence and observation could he have known, that there was danger, in so doing, of serious injury ? If this be answered in the affirmative, then it must be held that he assumed the risk of that danger.

It app'ears from the evidence that, appellant had been working for respondent Company as bridge carpenter along its railway line, for six months prior to this, accident. He had done similar work elsewhere to at least some extent. Six months’ experience along a railway line in operation would afford any person of ordinary intelligence a general knowledge of the movements of freight trains thereupon. The cars upon such a train are connected in such a manner that there is necessarily much “bumping” and “jerking” as the train is in motion. It is scarcely too much to say that this is a matter of common knowledge. It is certainly well known to those working upon or about railway lines where such trains are frequently passing. Such persons could not avoid perceiving these facts by the common, ordinary use of their natural faculties. Under the undisputed evidence of this case, it must be presumed that appellant knew of this “bumping” and “jerking,” As his own arms and body were to form the connection between such train and the hand-car, he would know that these irregular movements of the train would frequently occasion sudden and great strains, and tend to pull him from the hand-car. This danger would be obvious to any one of ordinary perception. In the remarks of the trial court, in passing upon the challenge and motion for judgment, we find the following apt observations:

“He knew just as well as Mr. Herndon knew, just as well as anybody could know, what the palpable and ordinary result would be of a man using himself as a human coupling pin. It seems to me there cannot be any escape from it, that the ordinary and usual thing would be just exactly what has happened in this case, that somewhere along on the route of travel of that hand-car and that freight train, that there would be a sudden diminution of the speed or a sudden increasing of it, or some jar, or something of that kind, that would put him in a position of great danger.”

The force of these suggestions must readily appeal to one’s reason. Appellant may not have known just how he wo-uld be injured, or whether or not he would for a certainty meet with a catastrophe on that trip-. But as a man of ordinary intelligence, familiar in a general way with the movements of freight trains and hand-ears, he did know that he was courting danger every moment he permitted his body to serve as a car-coupler while the train was in motion. The probability of serious injury was apparent at all times-.

It is not a case of relying upon the superior knowledge of the master. However much the master or foreman knew about this danger, and however many assurances of safety he may have given, the fact remains that the danger was open, apparent, and obvious to appellant. In his complaint, appellant speaks of this service as “very hazardous.” It would seem that no one could conceive of it as being otherwise. It also appears from the complaint that the foreman’s reason for having the men “hook on” to- the freight train was to get to Sedro-Woollay more quickly. This -would indicate an understanding, such as any one might naturally have, that a freight train would travel more rapidly than a hand-car. The greater the speed of the train, the more rapid would be the movements of the handle bar on the hand-car, the more pronounced the “bumping” and “jerking” of the cars-, and the greater the danger to the human coupling link. A moment’s contemplation of these matters could not fail to- impress apipellant with the dangers of his undertaking. That he undertook this task under the orders of the foreman does not change the rule of law. A servant is always supposed to be working under orders of the master—actual or implied. Neither does the case come within the rule applicable where the servant, relying upon a promise to repair or correct a dangerous situation, acts upon the definite, distinct orders of the master at the time, and is injured while so- doing.

It is argued that appellant might have been, and probably would have been, discharged if he had not obeyed the foreman’s command. Suck, is always the position of a servant. He has his choice of assuming the obvious dangers of the work and getting the compensation for his labor, or of refusing to do the work under the existing conditions and running the risk of being discharged. The law does not compel him to work for any certain person, or to obey any orders. But if he elects so to do, he thereby subjects himself to the law applicable to the status he thereby creates. The assumption of the risk of open and apparent dangers is imposed by law upon one occupying that status. The facts established by the evidence in this case axe such that we do not think any reasonable mind can believe appellant not to have realized that he was running the risk of great danger when he “hooked on” to the train. In fact, his complaint alleges that he “suspected” danger and protested against the undertaking. In the light of all these facts, the action of the trial court in sustaining the challenge to .the evidence and in granting judgment for defendant was correct. The case is controlled by principles recognized and established in this state by many decisions of this court. Week v. Fremont Mill Co., 3 Wash. 629, 29 Pac. 215; Jennings v. Tacoma R. & Motor Co., 7 Wash. 275, 34 Pac. 937; Olson v. McMurray Cedar Lumber Co., 9 Wash. 500, 37 Pac. 679; Bullivant v. Spokane, 14 Wash. 577, 45 Pac. 42; Hoffman v. American Foundry Co., 18 Wash. 287, 51 Pac. 385; Anderson v. Inland Telephone etc. Co., 19 Wash. 575, 53 Pac. 657, 41 L. R. A. 410; Brown v. Tabor Mill Co., 22 Wash. 317, 60 Pac, 1126; French v. First Avenue R. Co., 24 Wash. 83, 63 Pac. 1108; Danuser v. Seller & Co., 24 Wash. 565, 64 Pac. 783; Robare v. Seattle Traction Co., 24 Wash. 577, 64 Pac. 784; Bier v. Hosford, 35 Wash. 544, 77 Pac. 867; Woods v. Northern Pac. R. Co., 36 Wash. 658, 79 Pac. 309.

Had the case gone to the jury a verdict favorable to defendants would have been the only one legally possible: A verdict in favor of plaintiff upon such evidence could not be legally upheld. As a matter of law, the evidence defeated plaintiff’s right of recovery. There was consequently no logical or proper course for the trial court other than that adopted.

The judgment of the superior court is affirmed.

Mount, C. J., Crow, Rudkin, and Fullerton, JJ., concur.  