Does the complaint state facts sufficient to constitute a cause of action? At the time Manuel Guana was killed, Arizona was a territory, and, in answering the above question, we must be guided by the terms of the federal Employers’ Liability Act of April 22, 1908, chapter 149, 35 Stat. 65, Federal Statutes, Annotated, Supplement of 1909, page 584 (U. S. Comp. Stats. Supp. 1911, p. 1323). The portions of that act having a bearing on this case are as follows:
“See. 2. (Damages for Injuries in Territories, District of Columbia, Canal Zone, etc.) That every common carrier by railroad in the territories, the District of Columbia, the Panama Canal Zone, or other possessions of the United'States shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.
“Sec. 3. (Contributory Negligence of Employee.) That in all actions hereafter brought against any such common carrier by. railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee 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 *418negligence attributable to such employee: Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.
“Sec. 4. (Assumption of Risk of Employment.) That in any action brought against any common carrier under' or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. ’ ’
It will be seen that by section 2, in the territories, the District of Columbia, the Panama Canal Zone, and other possessions of the United States, the fellow-servant doctrine of the common law is abrogated and a liability upon the part of common carriers by railroad is created when injury or death results to an employee from the negligence of any of its officers, agents, or employees, or by reason of any defects or insufficiency, due to negligence, in its cars, engines, appliances, machinery, track, roadbed, wo.rks, boats, wharves, or other equipment. Section 3 abrogates the • common-law doctrine of contributory negligence, and substitutes therefor Avhat is known as comparative negligence, and authorizes the jury to gauge the amount of damages in accordance with the degree of negligence of the employee, diminishing it as the employee’s negligence increases. Section 4 retains the common-law doctrine of assumed risk, except where the injury or death is occasioned in whole or in part by a violation of some law by the employer enacted for the safety of employees.
The complaint does not allege any violation by defendant of any safety law enacted for the protection of employees, and it follows that plaintiff assumed those risks under the common law that have not been abrogated by this act. Freeman v. Powell (Tex. Civ. App.), 144 S. W. 1033; Barker v. Kansas City, M. & O. Ry. Co., 88 Kan. 767, 43 L. R. A., N. S., 1121, 129 Pac. 1151.
The complaint is based upon three acts of negligence, as we read it: (1) A failure on the part of defendant to furnish a *419safe place and appliances; (2) a failure to furnish lights; and (3) negligence of a fellow-servant.
Our analysis of the complaint, and, upon the demurrer, its allegations must be taken as true, satisfies us that the proximate cause of the accident that resulted in the death of Manuel Guana was the introduction into his work, without his knowledge, of a new element of danger in the wider engine, and that the failure to provide artificial lights lessened his ability or opportunity to discover a danger that, with lights, might have been easily seen and avoided. It seems that the engine-was being operated in the usual manner, and that the deceased, at the time of his injury, was performing his ordinary duties in the accustomed way. The accident did not occur because of the negligent movement of the engine, nor because of any negligent omission or commission of deceased, but solely by reason of the wider engine occupying more of the space between the upright posts and leaving too little space for deceased to do his work as he had been doing it on the narrower engines. The deceased might have been prevented, because of the darkness, from discerning that the particular engine was wider than the others upop which he had been working, or the difference in width might not have been so pronounced as to attract his attention, or his visual conception might have, been defective. We cannot say, as a question of law, the new element of danger interjected by the wider engine was “so patent as to be readily observed” by deceased. A most cautious person might have been lulled into a feeling of security from having repeatedly made the same trip with apparently the same means without injury.
Under the rule that the employee assumes all the ordinary risks of his employment, it may be said the deceased assumed the risks incident to working without artificial lights, so long as the instruments with which he labored remained the same, or so long as he ivas fully advised of any alterations or chauges that enhanced his danger. A servant does not assume extraordinary or unusual risks of his employment. 26 Cyc. 1177; Labatt’s Master and Servant, 2d ed., see. 1187. The last author says, at section 1180: “Most of th'e cases in which the servant’s nonassumption of extraordinary risks is asserted relate to injuries by dangerous conditions which arise from or are incident to the intrinsic quality or the permanent *420arrangement and relative disposition of the instrumentalities of the business or the materials which the servant is required to handle.”
The case of Choctaw etc. R. R. Co. v. McDade, 191 U. S. 64, 48 L. Ed. 96, 24 Sup. Ct. Rep. 24, in its essential features, bears enough resemblance to this case to make the principles therein announced applicable here. McDade, a brakeman, was struck by an overhanging iron pipe of a water tank and knocked from the top of a moving train and killed. The court said: “It is the duty of a railroad company to use due care to provide . . . properly constructed roadbed, structures, and track to be used in the operation of the road. Union Pacific Ry. Co. v. O’Brien, 161 U. S. 451 [40 L. Ed. 766, 16 Sup. Ct. Rep. 618]. The spout might readily have been so constructed and hung as to be safe. As it was maintained, it was a constant menace to the lives and limbs of employees whose duties required them, by night and day, to pass the structure. It is a case where the dangerous structure is not justified by the necessity of the situation, and we agree with the judgments in the courts below that its maintenance under the circumstances was negligence upon the part of the railroad company. . . . The servant assumes the risk of dangers incident to the
business of the master, but not of the latter’s negligence. Hough v. Railway Co., 100 U. S. 213 [25 L. Ed. 612]; Wabash Ry. Co. v. McDaniels, 107 U. S. 454 [27 L. Ed. 605, 2 Sup. Ct. Rep. 932]; N. P. R. R. Co. v. Herbert, 116 U. S. 642 [29 L. Ed. 755, 6 Sup. Ct. Rep. 590]; N. P. R. R. Co. v. Babcock, 154 U. S. 190 [38 L. Ed. 958, 14 Sup. Ct. Rep. 978], The question of assumption of risk is quite apart from that of contributory negligence. The servant has the right to assume that the master has used due diligence to provide suitable appliances in the operation of his business, and he does not assume the risk of the employer’s negligence in performing such duties. The employee is not obliged to pass judgment upon the employer’s methods of transacting his business, but may assume that reasonable care will be used in furnishing the appliances necessary for its operation. This rule is subject to the exception that, where a defect is known to the employee, or is so patent as to be readily observed by him, he cannot continue to use the defective apparatus in the face of knowledge and without objection, without assuming the *421hazard incident to such a situation. In other words, if he knows of a defect, or it is so plainly observable that he may be presumed to know of it, and continues in the master’s employ without objection, he is taken to have made his election to continue in the employ of the master, notwithstanding the defect, and in such case cannot recover.”
"While there may be cases in which it becomes the duty of the court to decide upon demurrer thát the employee assumed the risks as pleaded, we do not think this is that kind of a case.
The judgment is reversed and ease remanded, with directions to overrule demurrer.
FRANKLIN, C. J., and CUNNINGHAM, •!., concur.
NOTE.—As to servant’s assumption of risk of danger imperfectly appreciated, see note in 4 L. R. A., N. S., 990. And for servant’s assumption of risk from latent danger or defect, see note in 17 L. R. A., N. S., 76.