SUPREME COURT OF NORTH DAKOTA.

KOOFOS
V.

GREAT NORTHERN RY. CO.*

1. COMMERCE-FEDERAL EMPLOYERS' LIABILITY ACT "IN

TERSTATE COMMERCE."

An employee of an interstate railway carrier, who is injured while removing snow from a track over which interstate trains are being run regularly, is engaged in interstate commerce within the meaning of the Employers' Liability Act of Congress of April 22, 1908 (U. S. Comp. St. §§ 8657-8665).

(For other cases, see Commerce, Dec. Dig. § 27[5].)

Appeal from District Court, Ward County; Leighton, Judge.

Action by Gust Koofos against the Great Northern Railway Company. Judgment for plaintiff, and from an order denying its alternative motion for a judgment notwithstanding the verdict or for a new trial, defendant appeals. Affirmed.

Murphy & Tone, of Grand Forks, for appellant.

McGee & Goss and E. R. Sinkler, all of Minot, for respondent.

CHRISTIANSON, C. J. This is an action for personal injuries, brought under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]). The case was tried to a jury, which returned a verdict in favor of the plaintiff for $2,295. Judgment was entered pursuant to the verdict, and the defendant appeals from the judgment and the order denying its motion in the alternative for judgment notwithstanding the verdict or for a new trial.

The evidence showed that the plaintiff who at that time was 23 years of age, went to work for the defendant, railway company, about January 19, 1916, as a member of an extra gang employed in shoveling snow and fixing snow fences on the defendant's railroad in Montana. On Sunday, February 7, 1916, the extra gang was at Scobey, Mont. On the evening of that day the foreman requested plaintiff and the other members of the crew to go out and clean the snow out of some cuts between Scobey and Flaxville. While there is some conflict as to the exact degree, it is undisputed that the weather was very cold. The plaintiff testified that the thermometer registered more than 400 below zero, and that there was a blizzard. According to plaintiff's testimony he objected to going out to work that evening owing to the existing weather conditions, whereupon he was assured by the foreman that a warm passenger coach would be taken along in which the workmen could ride to and from work and to which they could retire and warm themselves if it became necessary while they were working; also, that fires would be built along the track; that they would go out only a distance of two or three miles, and would be gone only about two or three hours. The plaintiff testified that he thereupon dressed for work by putting on the same amount and kind of clothing which he had been wearing while engaged in performing similar work for the defendant that winter, and

* Decision rendered, Dec. 21, 1918. 170 N. W. Rep. 859. Syllabus by the Court,

that he started a fire in the heater in the coach connected with the engine. As they were about to start the foreman informed the plaintiff and other members of the crew that it was unnecessary to take the coach, as they were only going a distance of two or three miles, and would be gone only two or three hours; that the plaintiff and the other members of the crew thereupon in accordance with the directions of the foreman climbed upon the tender of the engine, and that they rode there in traveling to their work. They left Scobey about 8 or 8:30 in the evening, but instead of going a distance of only two or three miles and returning in two or three hours, they continued to move from cut to cut for a distance of from ten to twelve miles, and did not return to Scobey until about, or after, 5 o'clock the following morning. No fires were built along the track. The plaintiff and the other members of the crew from time to time went into the engine cab and warmed themselves. The plaintiff testified that some time after midnight he endeavored to go into the cab for the purpose of warming himself, and informed the foreman that he was getting cold, and that his feet were very cold, and that the foreman prevented him from getting on the engine, and told him, in vile and profane language, to go back to work; that when they started back to town the plaintiff was instructed by the foreman to get upon the tender; that he did so, and rode back to Scobey in that position; that on arriving at Scobey he reported to the foreman that his feet were frozen; and that some four hours later the foreman secured a doctor. It is undisputed that plaintiff froze both of his feet, and that as a result he was confined to his bed in Scobey for four days, and on the fifth was taken to Williston by the defendant and placed in a hospital in that city; that he remained in such hospital for some time; and that the defendant's surgeon amputated two toes on the left foot. The testimony also showed that at the time of the trial both feet were discolored; that the cause of the discoloration was the enlargment of the blood vessels, thereby causing a lack of normal circulation and rendering the feet more susceptible to heat and cold. A physician testified that this condition was permanent.

The plaintiff's testimony is disputed on many points. The foreman specifically denied that he ever promised to take along a heated coach or build fires along the railroad track, but he admits that he stated they would go out only two or three miles, and be gone only for two or three hours. He, however, denied positively that he refused to permit the plaintiff to get on the engine for the purpose of warming himself, or that he used the language which plaintiff claims, or any other abusive language, toward the plaintiff.

[1] Appellant contends that plaintiff was not engaged in interstate commerce within the meaning of the federal Employers' Liability Act. The contention is obviously without merit. The question was not raised in any manner in the court below. And there was no reason for raising it, as the evidence all showed that the passenger trains on the line where plaintiff was employed at the time he sustained his injuries were all interstate trains. Plaintiff was engaged in clearing a track over which an interstate passenger train would leave Scobey the following morning. He was clearly engaged in interstate commerce. Pedersen v. Del., L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Lombardo v. Boston & M. R. Co. (D. C.) 223 Fed. 427; Hardwick v. Wabash R. Co. 181 Mo. App. 156, 168 S. W. 328; Sanders v. Charleston & W. C. R. Co., 97 S. C. 50, 81 S. E. 283; Clark v. Chicago G. W. R. Co., 170 Iowa, 452, 152 N. W. 635; Southern R. Co. v. Puckett, 244, U. S. 571, 37 Sup. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918B, 69. See, also, Hein v. Great Northern R. Co., 34 N. D. 440, 159 N. W. 14.

Defendant also contends that: (1) Defendant's negligence has not been proven; (2) plaintiff was guilty of contributory negligence; and (3) plaintiff assumed the risk of the injuries. And it is therefore argued

that the court erred in denying a motion for a directed verdict based upon these grounds.

It is, of course, elementary that negligence, contributory negligence, and assumption of risk are, ordinarily, questions for the jury. They become questions of law only when reasonable men, from the evidence, can draw but one conclusion with respect thereto.

[2, 3] As already stated, this action was brought under the Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. Stat. § 8657]). There is no liability under that act in the absence of negligence on the part of the railroad company or some of its employees. Seaboard A. L. R. Co. v. Horton, 233 U. S. 492, 501, 502, 34 Sup. Ct. 635, 638, 58 L. Ed. 1062, 1069, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Manson v. Great Northern R. Co., 31 N. D. 643, 155 N. W. 32. But by section 3 of the act it is declared that:

"The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee." U. S. Comp. St. § 8659.

[4] The statute established the doctrine of comparative negligence, and abolished contributory negligence as a bar to recovery. Contributory negligence is a factor, and may still be shown (except in the case of a violation of a statute enacted for the safety of the employees), but its only effect is to diminish the damages. And in case the employee has by his own negligence contributed to the injury, his damages are to be diminished in proportion to the amount of negligence attributable to the negligent employee as compared with the combined negligence of the employee and the employer. As was said by the United States Supreme Court in Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 121, 122, 33 Sup. Ct. 654, 657, 57 L. Ed. 1096, 1101 (Ann. Cas. 1914C, 172) :

"The statutory direction that the diminution shall be "in proportion to the amount of negligence attributable to such employee means, and can only mean, that, where the causal negligence is partly attributable to him and partly to the carrier, he shall not recover full damages, but only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both; the purpose being to abrogate the common-law rule completely exonerating the carrier from liability in such a case and to substitute a new rule confining the exoneration to a proportional part of the damages corresponding to the amount of the negligence attributable to the employee."

Hence the trial court was clearly right in refusing to direct a verdict on the ground of contributory negligence, and properly submitted that question to the jury as one to be considered in diminution of damages only.

[5, 6] We are also of the opinion that the trial court was entirely correct in holding that the questions of negligence and assumption of risk were for the jury. The master is required to exercise such ordinary and reasonable care and precaution for the safety of his servant as the nature and dangers of the business admit of and demand. As between master and servant negligence should be measured by the character and risk of the business engaged in. 26 Cyc. 1077, 1078. While a servant on accepting the employment assumes all the ordinary and usual risks and perils incident thereto, which he knows, or may, in the exercise of reasonable care, know, to exist, he does not assume the extraordinary and unusual risks of the employment. 26 Cyc. 1177-1180. And the servant

has a right to rely upon representations and assurances of the master, as to the absence of, or precautions against, danger, unless the danger is obvious and imminent. 26 Cyc. 1185. See, also, Southwestern Brewery & Ice Co. v. Schmdt, 226 U. S. 163, 33 Sup. Ct. 68, 57 L. Ed. 170. Judge Cooley said:

"It is also negligence for which the master may be held responsible if, knowing of any peril which is known to the servant also, he fails to remove it in accordance with assurances made by him to the servant that he will do so. This case may also be planted on contract, but it is by no means essential to do so. If the servant having a right to abandon the service because it is dangerous refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume its risks. So far as the particular peril is concerned the implication of law is rebutted by the giving and accepting of the assurance; for nothing is plainer or more reasonable than that parties may and should, where practicable, come to an understanding between themselves regarding matters of this nature." Cooley on Torts (3d Ed.) pp. 1156, 1157.

The principle announced by Judge Cooley is applicable to the case at bar. Hyatt v. H. & St. J. Ry. Co., 19 Mo. App. 287; Schumaker v. St. P. & D. R. Co., 46 Minn. 39, 48 N. W. 559, 12 L. R. A. 257. As was said by the court in Hyatt v. H. & St. J. Ry. Co., supra:

* *

"What difference can there be in an assurance against danger from defects in machinery and against danger from being extraordinarily exposed to the rigor of extraordinary weather? If, as was said, the master cannot prevent the severity of the weather, he can very well provide against it. *Notwithstanding the defendant might not have been liable in this case if he had not promised to provide protection from the extraordinary weather, * yet when the assurances were given, and the plaintiff was induced thereby to undertake the extraordinary work, it became the duty of the defendant to protect him in the manner assured."

* *

Defendant also predicates error upon the court's instructions to the jury. In its brief defendant says:

"If the court was satisfied as a matter of law that the defendant was guilty of gross negligence, and the plaintiff only guilty of slight negligence in comparison, he should have so instructed the jury, deciding the question himself."

It further says:

"In every personal injury case arising under our statute where a railroad employee is involved, there is a question to be settled either as a matter of law or by the jury, which is a condition precedent to the right of recovery. That question is, Was the negligence of the plaintiff slight and the negligence of the defendant gross in comparison? If the facts are not disputed, or even though disputed, reasonable minds could only draw one conclusion therefrom, and it appears that the negligence of plaintiff was not slight, or, on the other hand, that the negligence of defendant was not gross in comparison with the plaintiff's negligence, there can be no recovery as a matter of law, and the court upon application should direct a verdict.”

In our opinion defendant's contentions are erroneous, and in direct conflict with the provisions of the statute. The federal Employers' Liability Act was enacted for the purpose of making certain changes in the then existing law relating to interstate railroads and their employees. Under the laws in force at the time of the enactment of the Employers'

Liability Act, an employer, though guilty of actionable negligence, would be absolved from liability by establishing the contributory negligence of the employee. The Employers' Liability Act expressly changed this, and provided that contributory negligence on part of the employee should no longer absolve the employer from liability, but should merely be available as a defense upon the question of the amount of damages. Where the causal negligence is partly attributable to the employer, the contributory negligence of the employee will not defeat recovery, but only lessen the damages. "It is only when plaintiff's act is the sole cause-when defendant's act is no part of the causation-that defendant is free from liability under the act." Grand Trunk Western R. Co. v. Lindsay, 201 Fed. 836, 120 C. C. A. 166; Id., 233 U. S. 42, 47, 34 Sup. Ct. 581, 58 L. Ed. 838, 842, Ann. Cas. 1914C, 168; Pennsylvania Co. v. Cole, 214 Fed. 948, 131 C. C. A. 244; L. & N. R. Co. v. Holloway's Adm'r, 163 Ky. 125, 173 S. W. 343. See, also, Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 122, 33 Sup. Ct. 654, 657, 57 L. Ed. 1096, 1101, Ann. Cas. 1914C, 172.

As already pointed out, there can be no recovery under the Employers' Liability Act in the absence of actionable negligence on the part of the railroad company or its employees. A party, in order to maintain an action under the act, must allege and prove (as in other actions based upon negligence): (1) The existence of some duty or obligation on the part of the defendant toward the plaintiff; (2) a failure to discharge that duty; and (3) injury resulting from such failure. And, of course, when the employee's negligence is in fact the sole cause of the injuries, he is not entitled to recover any damages from his employer.

The federal Employers' Liability Act in effect says to the employer: In case one of your employees sustain injuries by reason of your failure to discharge any legal duty which you owe him, you will be required to compensate him therefor to the extent, and to the extent only, that your negligence has caused him detriment. On the other hand it says to the employee: In case you are injured through the negligence of your employer, he will be required to compensate you for the detriment you suffer by reason of his negligence; if you are injured by reason of the combined negligence of yourself and your employer, you must bear that portion of the detriment which your own negligence occasions, and can recover from your employer only such amount as will compensate you for the share of your total loss which your employer has occasioned; but if your injury in fact occasioned solely through your own negligence, then you, and you alone, must bear the loss.

The remaining exceptions to the instructions are so obviously devoid of merit as to merit no consideration.

The judgment and order appealed from must be affirmed. It is so ordered.

Grace, J., concurs in the result.