Glantz v. Chicago, Burlington & Quincy Railway Co.

3jetton, J.,

concurring in conclusion.

I concur in the reversal of this case, but not for the reasons stated in the foregoing opinion. I think the proper rxxle as to pleading in case of assumption of risk is laid down in the syllabus in Evans Laundry Co. v. Crawford, 67 Neb. 153, as follows: “It is not required that the master who is sxxed by a servant for an injury received while engaged in the line of his employment shall plead in his ansAvex* that the servant assumed the xxsual and ordinary risks and hazards incident to the service, in order to be entitled to an instruction to the jury as to the rule of law regarding sxxch assxxmed risks. Where the assumption of a risk not usually and ordinarily incidexxt to the employment is relied on as a defense in an action against the master for xxegligence, such assumption of risk must be specially pleaded.”

I am also of opinion that, while the instructions are more extended than -necessary uxxder the simple issues presented in this case, yet there is nothing seriously preju*67dicial to defendant therein when the whole charge is considered. Tiie judgment should he reversed for the reasons that the evidence fails to sustain the verdict, and that if the jury had obeyed the instructions of the court it must have found for the defendant. The court instructed the jury that “if the defendant company, was operating its switch engine at that time, with the ordinary and usual tender such as Philip Feuerstein had been accustomed to .see it operate when engaged in his work, or if the defendant company was maintaining the kind of a lookout such as said Feuerslein had been accustomed to see it maintain, then said Feuerstein assumed the risks incident thereto.” The evidence shows without dispute that the deceased had worked in the Havelock yards for two or three months before he was killed; that this particular engine was the'only switch engine used in these yards; that it had been running there for two months or more before the day of the accident, and that on that day it had been running backward and forward on these tracks about 15 or 20 times. It is also clearly proved that it was not the custom to keep men upon the running boards of the engine, except when entering the shops in which tracks were laid and many men employed. The defendant “was operating its switch engine, at that time, with the ordinary and usual tender such as Philip Feuerstein liad been accustomed to see it operate when engaged in his work,” and was also “maintaining the kind of a lookout such as said Feuerstein had been accustomed to see it maintain.” There being no evidence to the contrary upon these propositions, and the deceased having assumed the ordinary risks of his employment, the verdict is not supported by the evidence and is contrary to the instructions of the court.

For these reasons, the judgment of the district court should be reversed.