employment. 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

pears that at the time plaintiff was injured he was thirty-five years old. He 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. He had been accustomed to couple box cars on the bridge. He 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. He 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 track 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 cars made up the train; he could see the box cars and the garbage cars; that it was plain daylight."

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It was daylight, with plaintiff engaged in the performance of a duty "naturally incident to the occupation," in the full

possession 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. Can 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 switchman; 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

clear 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 the accident occurred for seven years. He testified "that the practice had prevailed of coupling or connecting cars where they 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 was 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 19 inches from the side of a passing box car, "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 16 inches to 168 inches;" and this evidence became exceedingly important, inasmuch as the plaintiff testified that, while he knew the scale box was there, he had not, before the time of the accident, been on track No. 2, and did not know its relation to the track. It 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. But 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 was 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 he 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

ditions behind him. There plaintiff was hanging to a moving train in the performance of his duty, and where his duties required him to be. 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 he was standing, and, as we shall shortly demonstrate from his own record, he was in a position where he was not required to be 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 case 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.