(dissenting). The gist of plaintiff’s cause of action is that the defendants employed an incompetent fellow servant by reason whereof he was injured. The defense is lack of negligence in that regard, contributory negligence and assumption of risk on the part of the plaintiff. At the close of plaintiff’s case the trial court, upon a motion ■of the defendant, directed a verdict in favor of the defendant. The verdict so rendered, and the judgment entered thereupon, operated as an adjudication upon the pleadings and the evidence submitted. Unquestionably, upon this record, if, as a matter of law, there was no negligence of the defendants that proximately caused .the injuries, or, if the plaintiff either was guilty of contributory negligence, or assumed the risk, the trial court' did not err in so directing a verdict. Although the defenses of contributory negligence and assumption of risk are affirmative defenses, nevertheless it is clear that the defendant was entitled to avail himslf upon such motion or for a directed verdict, if the record •discloses as a matter of law that plaintiff’s cause of action was barred, ■either by his contributory negligence, or, by his assumption of risk. I am of the opinion that, upon this record, there were no questions of fact to be submitted to the jury upon which reasonably prudent men might differ concerning the defendants’ negligence, and the contributory negligence or assumption of risk on the part of the plaintiff. I am further *242of the opinion that upon this record the majority opinion in so far as it holds that there are questions of fact in this regard practically abrogates the application of the doctrine of assumption of risk. There is no question that, in the relation of the parties to this action, the fellow-servant rule and the doctrine of assumption of risk apply. It is deemed unnecessary to set forth in detail the evidentiary facts as appearing in this record. Some of them have been recited in the majority opinion. It is sufficient to state that the following facts, in my opinion, appear established in this record, to wit:
1. The plaintiff worked for the defendants as a common laborer from the month of May, 1917, up to the time he was injured on October 7, 1917; his duties consisted in unloading scrap iron; sometimes in loading cars or unloading cars; also in breaking up scrap iron.
2. The plaintiff knew, during the summer, Heine, the alleged incompetent servant; he came there to work after the plaintiff did; he observed him at work lots of times; he knew that Heine would get rattled and fling things around; that he would get angry or mad and swear; he told one of the defendants about it, and said that he would not work with Heine any longer. He told such defendant that he did not want to work with him, and that defendant said for him to pick out any man in the yard he wanted and he picked one John Foster; he did not work with this man Heine after that until the day of the accident.
3. Nevertheless, on the day of the accident and before the accident, this plaintiff, without any direction so to do, as far as the record is concerned, was working with this Heine. He was on top of a steam threshing machine. Heine was picking up and wheeling away, with a wheelbarrow what the plaintiff knocked off. In the afternoon one of the defendants directed the plaintiff and Heine to start work at the box car where the accident occurred, because he wanted to have it unloaded so as to save demurrage.
4. The plaintiff then proceeded to the box car. He requested the aid of another man, named Ed Heining. They got the box-car door open and room sufficient for Heine to get within the car. He directed Heine to get into the car and to open the top, and that he and this Ed Heining would push out the bottom. There was a casting crosswise in the door. It had to be pried one way and the other. The plaintiff pried it towards Heine so it would pass the door. He kept working *243it up towards him. Heine was taking it kind of slow, and the plaintiff said, “You are not getting this around very fast.” Further evidence in this regard is recited in the majority opinion. The plaintiff, on the ground, was working one and past the door and the man Heine, within the car, was swinging around the other end for the casting to come out. The plaintiff testified that he told Heine it was pretty near ready to go. That Heine said, “Damn,” and gave it a tilt on the other end, and it came down and took him in the leg. This casting projected on each side of the car door about 8 inches. It was a big piece of casting, weighing some 800 pounds. The car was loaded about half full. The plaintiff had a bar and was prying this casting to get the end of it around the jamb of the door so he could get it out. The other end was higher and lying upon some scrap iron that was holding it. Before this time the plaintiff had unloaded cars of scrap iron containing castings as big as the one in question. It was customary to do this unloading with two men. í
5. .Evidence concerning the ineompetency of this man Heine is stated in the majority opinion.
If it be conceded that there is evidence in this record that the defendants employed and retained this man Heine, an incompetent fellow servant, it was necessary, nevertheless, to establish in the record that his incompetency was the proximate cause of the injuries sustained. 26 Cyc. 1302. What evidence in the record forms a question of fact for the jury that the incompetency of this man Heine occasioned this injury or proxjmately caused it? |
Assuredly, the act of Heine in tilting this casting as he was directed by the plaintiff to do was not an act of incompetency or the result of his incompetency as a fellow servant. -He was doing exactly as the plaintiff had requested him to do. Again the fact that he uttered the word “damn” in connection with this work in trying to pry this casting does not demonstrate, or afford any proof, that this was an incompetent act that proximately caused the injury. Further there is no evi-' dence in this record that this man Heine did push this casting out upon the plaintiff. It is true that the plaintiff testified that Heine had to shove it out, for it would not come out without being shoved out This was his mere conclusion. He was upon the ground, Heine was within the car. All that the evidence discloses is that Heine was tilt-.. *244ing this casting as he was directed by the plaintiff to do. This was not evidence of Heine’s incompetency, rather, if evidence at all, evidence of plaintiff’s own incompetency and negligence.
The most that can be said from the testimony of the plaintiff himself is that this man Heine, while trying to get a foothold and trying to work on this casting within the car, used the word “damn,” gave the casting a tilt; it came out and injured the plaintiff. Furthermore, the evidence clearly discloses as a matter of law, in my opinion, both contributory negligence and assumption of risk on the part of the plaintiff. Voluntarily, this plaintiff was Avorking Avith this man Heine before he was directed by the defendant to proceed to unload this car of scrap iron. Then for many months he had known, fully better than the defendant, the incompetency of this man Heine as he testified and as other witnesses testified. While working with this man Heine, one of the defendants directed them to unload this car of scrap iron. Without objection, and Avithout complaining about working Avith this man Heine, the plaintiff proceeded so to do. In unloading such scrap iron the plaintiff Avas the director general in the proceedings had. He was the boss on the job, as the testimony well discloses. He directed what each man should do, Avhere Heine should go and what he should do. Assuredly, it appears, as a matter of law, that the injuries sustained by the plaintiff were the result of his oavu negligence and risks then assumed or created by him. The risk in this work of so unloading the casting, to AA'hich the plaintiff Avas subjected, was a risk created by the plaintiff, and not by .the defendants. The risk of directing the man Heine to go within the car and to tilt this casting Avas a risk that the plaintiff created by his own direction. It Avas one that he assumed by his own direction, and through the position where he placed himself; it was a risk, likewise, that he could have obviated by his ovm direction.
In my opinion the trial court did not err in directing a verdict, and its order should be affirmed.
Robinson, J., concurs.