(concurring specially). The principal points relied upon by the defendant in this case are: (1) That there is no evidence of negligence; (2) that in any event the plaintiff voluntarily *193assumed the risk of the injuries; and (3) that the damages awarded, if any were assessable at all, are clearly excessive.
It is of course conceded by the defendant that the questions of negligence and assumption of risk are for the jury in all cases where the facts are controverted, or, if uncontroverted, are such that different minds might reasonably come to different conclusions as to whether the defendant was in fact negligent, or the plaintiff did assume the risk of the injury involved in the suit. But defendant contends that in this case only one inference can be reasonably drawn both as to negligence and assumption of risk; that these inferences are both in favor of the defendant, and that hence the court should have directed a verdict in its favor. The evidence in this case is very close upon both propositions, but I am not prepared to say that reasonable men might not reasonably draw the-inference from the evidence that the defendant was negligent, and that the plaintiff did not assume the risk of the injuries for which he seeks to recover in this action. Hence, I cannot say as a matter of law either that the defendant was not negligent, or that the plaintiff assumed the risk of the injury. Neither can I saj that the verdict is so excessive as to justify this court in interfering with the trial court’s order denying a new trial. For these reasons I concur in an affirmance of the judgment and the order appealed from. I do not, however, concur in the discussion relative to the doctrine of assumption of risk, and the criticism of the decision of the supreme court of Michigan in Ragon v. Toledo, A. A. & N. M. R. Co. 97 Mich. 265, 37 Am. St. Rep. 336, 56 N. W. 612, contained in the opinion prepared by Mr. Justice Grace. The doctrine of assumption of risk has become firmly established as a part of the law of master and servant. It has been embodied in the statutory law of this state. See § 6107, Compiled Laws 1913. It is available as a defense under the Federal Employer’s Liability Act,- except in cases where the carrier has violated a statute enacted for the safety of the employees. See Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834; Jacobs v. Southern R. Co. 241 U. S. 229, 60 L. ed. 970, 36 Sup. Ct. Rep. 588; Baugham v. New York, P. & N. R. Co. 241 U. S. 237, 60 L. ed. 977, 36 Sup. Ct. Rep. 592, 13 N. C. C. A. *194138. If the doctrine of assumption of risk is wrong or undesirable, let it be modified or abrogated by legislative enactment, and not by judicial fiat.
Bruce, J. I dissent.