US SUPREME COURT DECISIONS

The Employers' Liability Act abrogated the common law fellow servant rule by placing negligence of a coemployee upon the same basis as negligence of the employer.

In saving the defense of assumption of risk in cases other than those where the carrier's violation of a statute enacted for the safety of employees contributed to the injury or death, the Employers' Liability Act places a coemployee's negligence, where it is the ground of the action, in the same relation as the employer's own negligence would stand to the question whether a plaintiff is to be deemed to have assumed the risk.

A railroad employee having voluntarily entered an employment requiring him on proper occasions to board a moving train assumes the risk normally incident thereto other than such risk as may arise from the failure of the engineer to use due care to operate the train at a moderate rate of speed so as to enable his co employee to board it without undue peril.

Such an employee may presume the engineer will exercise due care for his safety, and does not assume the risk attributable to operation at unduly high speed until made aware of danger unless the undue chanrobles.com-red

Page 241 U. S. 311

speed and consequent danger are so obvious that an ordinarily careful person in his situation would observe the speed and appreciate the danger.

An employee is not bound to exercise care to discover extraordinary dangers arising from the negligence of the employer or of those for whose conduct the employer is responsible, but may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger are so obvious that an ordinarily careful person under the circumstances would observe and appreciate them. Where an action under the Employers' Liability Act is tried in a state court, local rules of practice and procedure are applicable, and if the state appellate court holds that the trial court failed to follow such a rule relating to an instruction, but affirmed on the ground that there was no question for the jury respecting the question on which the instruction was asked, and in fact there was such a question, it is incumbent on this Court to review such decision.

159 Ky. 687 reversed.

The facts, which involve the validity of a judgment in an action in the state court for personal injuries under the Employers' Liability Act, are stated in the opinion.