Indianapolis Traction & Terminal Co. v. Holtsclaw

Concurring Opinion.

Roby, C. J.

I concur in the result and in most of the reasoning of the majority opinion, but do not understand that assumed risk and contributory negligence depend on the same facts. I do not think that the defect complained of was, in any view of the case, a risk incident to the employment, negligence upon the part of the master not being a legitimate part of any business.

If the risk was assumed, it was because it was an obvious and open one. The subject has been fully and recently considered by both the Supreme Court and the Appellate Court. The following cases cover the question: Avery v. Nordyke & Marmon Co. (1905), 34 Ind. App. 541; Wright v. Chicago, etc., R. Co. (1903), 160 Ind. 583; Davis Coal Co. v. Polland (1902), 158 Ind. 607, 92 Am. St. 319, and authorities cited.