Summary
In Trask v. Cal. S. R. R. Co., 63 Cal. 96, where a trainhand was injured, and the court found that the injury was caused by the unskillful, improper, and negligent manner in which the defendant constructed its road, it was held that "the plaintiff did not assume the risk arising from the unskillful, improper, and negligent manner in which defendant's road was constructed."
Summary of this case from Magee v. North P. C. R. Co.Opinion
APPEAL from a judgment of the Superior Court of the county of San Diego, and from an order refusing a new trial.
The injury resulted from an accident to a construction train on which the plaintiff was riding.
COUNSEL:
A person who voluntarily enters the employ of another, with full knowledge of the dangers and hazards of the employment, must be held to have assumed the consequences of such risks; and he cannot recover from his employer for injuries resulting therefrom. ( Sweeney v. Central Pacific R.R. Co. 57 Cal. 15; McGlynn v. Bodie, 31 Cal. 377; Ladd v. New Bedford R.R. Co. 20 Am. Rep. 331; Lovejoy v. Boston & Lowell R.R. Co. 28 Am. Rep. 206; Gibson v. Erie R.R. Co. 20 Am. Rep. 552; Civil Code, § 1970; McLean v. Blue Point Gravel Co. 51 Cal. 256; McDonald v. Hazeltine, 53 Cal. 36.)
H. E. Cooper, and M. A. Luce, for Appellant.
Leach & Parker, for Respondent.
Cited Beeson v. Green Mountain G.M. Co. 57 Cal. 21.
OPINION
PER CURIAM.
The demurrer to the complaint was properly overruled.
The point is made that the evidence shows that the plaintiff was injured by the negligence of the defendant's engineer, and that as he was engaged in the same general business with such engineer, he assumes, in taking employment, such a risk, and should not be allowed to recover. But the court finds that the injury was caused by the unskillful, improper, and negligent manner in which the defendant constructed its road.
Conceding that the point urged, as to the relation of the plaintiff and the engineer is correct, it has no application to the facts as found. The plaintiff did not assume the risk arising from the unskillful, improper, and negligent manner in which defendant's road was constructed.
It is said that the evidence is not sufficient to sustain the findings as to the construction of the road above stated. We have examined the evidence and are of opinion that it does sustain the finding.
Judgment and order affirmed.