dissenting:
I am forced to dissent from tbe opinion and judgment of tbe court. My associates bave proceeded upon tbe assumption tbat plaintiff was required, in tbe performance of bis duty in making tbe coupling, to occupy tbe space between the girder and tbe cars. There is not even an intimation in tbe evidence tbat any such duty was imposed upon him, but, as I shall show later, exactly tbe contrary is disclosed by tbe record. However, inasmuch as my associates bave proceeded upon this theory, it can be readily shown tbat, even upon this false assumption, the case falls squarely within tbe doctrine of assumed risk.
In many of tbe States tbe common-law doctrine of assumed risk has been greatly modified by statute. But in tbe District of Columbia tbe common-law rule prevails. Butler v. Frazee, 211 U. S. 459, 53 L. ed. 281, 29 Sup. Ct. Rep. 136. "What, then, is tbe duty.of an employer as to furnishing bis employee a safe place in which to work ? Tbe reciprocal duty of employer and employee is -well stated by Mr. Justice Pitney in the latest utterance of tbe Supreme Court on this subject, as follows: “Some employments are necessarily frought with danger to the workman, — danger tbat must be and is confronted in tbe line of bis duty. Such dangers as are normally and necessarily incident to tbe occupation are presumably taken into tbe account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether be is actually aware of them or not. But risks of another sort, not naturally incident to tbe occupation, may arise out of the failure of tbe employer to pxercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These tbe employee is not treated as assuming until be becomes aware of tbe defect or disrepair, and of the *405risk arising from if, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them.” 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. In the same opinion it was held that the common-law rule of assumed risk was not changed by the employers’ liability act, and that the negligence of the employer must be affirmatively established as a condition precedent to recovery in any case.
On any theory, therefore, plaintiff was required to show thal defendant veas negligent in permitting garbage cars to be coupled at the place where the accident occurred. The negligence of defendant is an affirmative fact, and the burden of establishing it is upon plaintiff. Butler v. Frazee, 25 App. D. C. 392. Thompson-Starrett Co. v. Warren, 38 App. D. C. 310. The rule is clearly stated in Patton v. Texas & P. R. Co. 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct. Rep. 275, as follows: “It is not sufficient for the employee to show that the employer may have beeii guilty of negligence, — the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible, and for some of which he is not, it is not for the jury to guess between these half a dozen causes, and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employee is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.”
The mere fact that a place may be dangerous does not imply negligence. Railroading at best is dangerous business. Coupling cars by the most approved methods is a dangerous occupation. A person, therefore, engaged in the business, is presumed to exercise care commensurate with the usual hazards of his *406employment. Of course, plaintiff was engaged in the performance of his duty when injured, in that he was required to make the coupling. But if it appears that he was not required to occupy the position he did, and that a safe place was open to him, of which he knew, or ought to have known, where the work could be performed with equal efficiency, he was required, in the exercise of reasonable care, to choose the safe position. Before defendant can be charged with negligence, it must appear that the only place open to plaintiff in which to perform the work assigned him was unsafe, and, even then, before plaintiff could recover it must appear that the danger was not reasonably obvious. If it appears that defendant provided safe appliances and a safe place to make the coupling, it discharged its full duty toward plaintiff.
It is not contended that there was any temporary defect in the bridge, tracks, or cars, or in the operation of the cars generally, which caused or contributed to the accident; but it is claimed that the negligence of the company consisted in requiring garbage cars to be coupled on the bridge. As to all other cars the place was reasonably safe. Assuming, therefore, that the girder was so constructed in relation to the garbage cars as to render the space between dangerous, did plaintiff assume the risk attendant upon the dangerous situation? The rule of assumed risk is stated in Butler v. Frazee, 211 U. S. 459, 53 L. ed. 281, 29 Sup. Ct. Rep. 136, as follows: “One who understands and appreciates the permanent conditions of machinery, premises, and the like, and the danger which arises therefrom, or by the reasonable use of his senses, having in view his age, intelligence, and experience, ought to have understood and appreciated them, and voluntarily undertakes to work under those conditions and to expose himself to those dangers, cannot recover against his employer for the resulting injuries. Upon that state of facts the law declares that he assumes the ¡risk.”
Was the danger such that plaintiff, “by the reasonable use of his senses, having in view his age, -intelligence, and experience, ought to have understood and appreciated it ?” It ap*407pears that at the time plaintiff was injured he was thirty-five years old. lie had been in the employ of defendant company for seven years, engaged in handling, inspecting, switching, and coupling all sorts of cars in and about the yards. There were, during this period, from six or eight garbage cars a day handled in the yards. Tie had been accustomed to couple box cars on the bridge. ITe had not coupled garbage cars there, but he had coupled garbage cars elsewhere, and was accustomed to seeing them shifted back and forth across the bridge, and also standing on the bridge.
On the day of the accident, he was sent to make a coupling between two sections of a train at a point where a garbage car at the rear of the section of the train to which the engine was attached was to be coupled to the front box car of the rear section of the train. Tie testified that “Conductor Herring told him to make the coupling between the cars to some cars standing on track No. 3; that he walked up track No. 4, found the knuckles open on the car standing there, and waved the engine back standing in track No. 4 when the cars came together; that they did not couple, and that he had to get over the girder to trade No. 3 to get between the cars, lift the lever, open the knuckle, and adjust the coupling; that when he had done that he backed against the girder and stood there; that he signaled for the engine to come back, and that it came back and the cars came together in front of him; * * * that in doing so the end of the car caught him and turned him around, and when it released him, he fell face across the girder,” thus sustaining the injuries complained of. He also testified as to the situation at the time of the accident, “that he had been handling slop cars a number of years before he had been injured; that he was familiar with their appearance, but had no occasion to measure them or anything of that kind; that there was nothing at the time of the accident to interfere with his seeing what oars made up the train; he could see the box cars and the garbage cars; that it was plain daylight.”
It was daylight, with plaintiff engaged in the performance of a duty “'naturally incident co the occupation,” in the full *408possession of his senses, creating his own situation by signaling the engineer to move the train back, which was carefully done. Nothing short of stupidity, or a wilful neglect of duty, or a total disregard for his own safety, could account for any sane man standing in the position occupied by plaintiff, and permitting a slowly approaching car, which he himself had put in motion, to run him down. He was standing between the girder and the end box car. He knew as an experienced workman that the jar of the sections of the train coming together would create a slight backward movement of the cars. The short distance could have been covered by a step or two simultaneous with the slow movement of the, train. He excuses himself with the statement that he did not know that the garbage car was wider than the box car. He had room to stand and work between the box car and the girder. Oan greater carelessness be imagined than that he should fail to observe that the wider approaching garbage car extended almost to the girder? The niceties of distance in inches and fractions of an inch were not necessary to render the dangerous situation obvious to a person of ordinary intelligence.. The fact that the beam of the garbage car may have been lower than the top of the girder, which seems most improbable, since the record discloses that the girder was only 25 inches high, is unimportant, except that, to an ordinarily intelligent observer, it would emphasize the impending danger.
But my associates rely chiefly upon the case of Texas & P. R. Co. v. Swearingen, 196 U. S. 51, 49 L. ed. 382, 25 Sup. Ct. Rep. 164, 17 Am. Neg. Rep. 422. It will be observed that the important facts in that case have escaped their attention. Since the law of that case can only be applied to this upon a similar state of facts, the statement of the court in that case becomes most interesting. There the injured party was a yard switch-man; here he was a brakeman in the yards. There he had worked in the El Paso yards for seven days before the accident; here plaintiff had worked in and about the Washington yards and the point where the accident occurred for seven years. There the accident occurred at night; here it occurred in the *409dear light of day. There the plaintiff was switching his first train on track No. 2, where the accident occurred; here plaintiff had switched and coupled cars in and around where 1he accident occurred for seven years. He testified “that, the practice had prevailed of coupling or connecting cars where the} stood, whether on or off the bridge, and he had made couplings of cars on the bridge before the time he was injured.” There plaintiff, in the darkness of night, was hanging to the ladder at the side of a moving box car, with a lantern on his arm, looking in the opposite direction from the scale box, as it was his duty to do, watching for a signal from the yardmaster; here plaintiff, in the clear light of day, was looking toward a standing train waiting to be put in motion by him, and when the signal was given it ivas to slowly move toward him, presumably a distance of not more than two or three yards. There, the record showed that “there was evidence tending to establish that the track scale box was not erected in a reasonably safe place.” It also appeared that while the scale box in question stood 3 9-J indies from the side of a passing box ear, “there was evidence that at other yards than the one in question the distances from the side of a standard box car to adjoining scale boxes varied from 3 6 inches to 3 68 inches;” and this evidence became exceedingly important. inasmuch as the plaintiff testified that, while he knew the scale box was there, he liad not, before the time of the accident, been on track No. 2, and did not know its relation to the track. Tt was sought to show that he was familiar with the construction of standard scale boxes in relation to railroad tracks, and the variation of the boxes in distance from the track became most important. Ihit here the conditions as to the bridge girder, tracks, coupling appliances, and cars were as they had existed for “five or six years,” and there ivas no defect shown or claimed, except that the garbage car was wider than the box car to which it was being coupled. There, all that plaintiff knew of the scale box was that it stood adjacent to track No. 2, but be had not been on this track or in the vicinity of the scale box before the night and trip of the accident. Here the plaintiff had seven years’ experience and observation of existing con*410ditions behind him. There plaintiff was hanging to a moving train in the performance of his duty, and where his duties required him to be. 1 Here plaintiff was standing on the ground looking at a slowly approaching car, which he had set in motion, presumably, at most, but a few yards’ distance from where lie was standing, and, as we shall shortly demonstrate from his own record, he was in a position where he was not required to lie in order to properly perform his duties. In the light of this comparison, it requires a vivid and flexible imagination to bring the law applicable to the facts in that ease into harmony with the facts in this case.
The other case cited and relied upon in the opinion of the court (Texas & P. R. Co. v. Harvey, 228 U. S. 319, 57 L. ed. 852, 33 Sup. Ct. Rep. 518) is not in point. My associates seem to have overlooked the fact that on the question of assumed risk the case turned upon a local statute of Texas modifying the common-law rule. The opinion also fails to disclose that the Supreme Court turned its decision on the question of contributory negligence. There is a well-defined, but quite elementary, distinction between assumed risk and contributory negligence.
I have proceeded thus far in answer to the theory upon -which my learned associates have reached their decision.' It, however, can be demonstrated clearly that the theory thus adopted is a false one, and that not only can no negligence be imputed to the railroad company, but that plaintiff was in a position at the time of the accident where he was not required to be by his employer, and where it was not necessary for him to be to perform the duty to which he had been assigned. It is an elementary principle of the law of assumed risk that where an employee has two ways obviously open to him for the performance of a duty, — one safe, and the other dangerous, — if he elects to take the dangerous position, he assumes the risk attendant upon his selection.
Plaintiff had not only two, but three, ways open from which to choose. He could have done as he testifies he did when he was ordered to go and make the coupling, — stand on the adjoining track and signal the engineer to move back the. train. *411When the coupling failed, he signaled the train forward a sufficient distance to permit him to go in and adjust the lmuclde, and he could have stepped across the girder on to the adjoining track again before signaling the engineer to back up the train, lie could have repeated this until the coupling was made. We must assume that this was a usual method of coupling, since plaintiff, when complying with the order of his superior in the first instance, adopted it. No witness has testified that it was not proper. On the contrary, the conductor in charge of the train at the time of the accident testified “that in making the couplings the men go in to where the cars stand, and set the couplings, and they can then either stay inside between the girder and the cars, or come out on to one of the other tracks, or they might climb out on top of the girder.”
Plaintiff, on the other hand, had open to him the method which the testimony of his fellow employees conclusively shows to have been followed not only by other brakemen and switch-men, but by plaintiff himself, — to stand on top of the girder while the cars were coming" together to effect a coupling. The conductor, as above quoted, testified that the men in making the coupling “might climb out on top of the girder,” and, on cross-examination, “that he had quite frequently seen men on top of the girder when at work making coupling on the bridge.” The engineer in charge of the engine when plaintiff was injured testified “that he had known Duvall as a railroad man for five or six years, ever since the high line had been operated, and the conditions of the line and the bridge had been the same during that time; that he sees men on top of the girder when they give signals about shifting, every time they couple cars; that he had seen Duvall on the girder, but could not remember whether he saw him on the girder on the day he was injured; and he has frequently seen brakemen stand on the girder during coupling operations, and nothing could reach them there.” An extra brakeman testified “that he had seen men in making couplings on the bridge get up on top of the girder, and also had seen them stand between the car and the girder.”
Thus it will be observed that three ways were open to plain*412tiff, two of which, at least, were perfectly safe. Much is made in the opinion of his being required to operate the.lever at the end of the car when the coupling was being made. He was not required to do so in the first instance when he stood on the adjoining track, and there is not even an intimation in the evidence that any such requirement existed. But if it did, the lever could have been operated as easily and as effectively from the top of the girder as from the ground. But it is asserted that others had coupled cars from the position assumed by plaintiff, and no accident had occurred; therefore he was justified in assuming that' the place was safe. In other words, if six employees in the performance of a duty assigned them assume a careless, negligent, and unnecessary position, and escape injury, the employer would be liable for injury to the seventh because of the successful escape of the six. This illustrates the absurdity of the logic. If there was anything in the contention, the successful escape of the six would justify the employer in assuming that the place was safe. But the reasoning' reaches neither the employer, the employee, nor anyone else. We have plaintiff, with his eyes open, selecting a dangerous place to perform the duty assigned-him, when a safe place was but a step away, and by his gross negligence inviting injury. If, as urged, the width and height of the garbage car made the place dangerous, the danger was so apparent that, in the exercise of reasonable care, he ought to have observed it. His gross carelessness in this particular is not an open question.
Plaintiff has tendered no issue of fact for defendant to answer. While the jurors are the duly appointed triers of facts, and cases should not be withdrawn from their consideration except for good cause, the court should not permit them, in disregard of all miles of legal procedure, to indulge in mere speculation and reach a verdict induced by sympathy or prejudice. Where the testimony submitted can legally lead to but one result, there is no question for the jury, and the judge, in the proper discharge of his duty, should withhold the case. “The judge is primarily responsible for the just outcome of *413the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determination, nor simply ruling on the admissibility of testimony, but one who, in our jurisprudence, stands charged with full responsibility. He has the same opportunity that jurors have for seeing the witnesses, for noting all those matters in a trial not capable of record, aud when, in his deliberate opinion, there is no excuse for a verdict save in favor of one party, and he so rules by instructions to that effect, an appellate court will pay large respect to his judgment.” Patton v. Texas & P. R. Co. 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct. Rep. 275.
Commenting upon the wide and extensive scope of judicial discretion, Mr. Justice Robb, in Capital Traction Co. v. Brown, 29 App. D. C. 473, 12 L.R.A.(N.S.) 831, 10 Ann. Cas. 813, taking judicial cognizance of the negligence of the railway company, said: “Their dereliction in failing to provide adequate accommodations for their passengers is so generally known that courts will take notice of it, for, while theoretically justice is blind, practically justice is ever alert, watchful, and progressive.” On plaintiff’s own testimony justice must be more than theoretically blind; its eyesight is woefully defective when it fails to observe the approaching garbage car. Even excusing plaintiff’s presence in the place where he was injured, the situation depicted by the record is so obvious that whether plaintiff ought to have observed it is a question of law for the court, and not a question of fact for a jury.
As stated at bar and in brief of counsel, this case was instituted in the belief that the defense of assumed risk had been denied defendant in the employers’ liability act. But in 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, the court held that the act had left the common-law doctrine of assumed risk intact. What Congress refused to do, however, has been effectually accomplished in this District by the opinion in this case. A precedent has been established which will lead to increased litigation in a branch of the law already overworked in this jurisdiction. Whatever conclusion a jury, specu*414lating in the realm of sympathy and prejudice, may reach in this case, there remains but one legal and just judgment., — ■ that reached by the learned trial justice, which should be affirmed.