While it is true that that part of the Act of Congress, (41 Stat. at Large, §§ 988 to 1007) applicable to this case reserves to the employer the defense of the assumption of risk, yet certainly it ought not to be held that the respondent in this case assumed the risk of the negligence of a fellow servant. The negligence complained of was the dropping of the strongback in the immediate proximity of the respondent, so that he was injured thereby. As I read the record in this case, strongbacks are never dropped when any person is standing near, and it is apparent that, had the fellow servant lowered the strongback to the deck instead of dropping it, no injury *Page 506 could have occurred. This, I think, made a question of fact for the jury. It seems to me that the logic of the latter part of the majority opinion is to hold that respondent assumed the risk of the negligence of a fellow servant. To so hold is, I believe, to deny respondent the benefits conferred upon him by the Act in question.
I therefore dissent.
FULLERTON, C.J., and BEALS, J., concur with FRENCH, J.