Opinion of the Court. 241 U. S. reversing the judgment although no reversible error exists. 3. It is contended that the court erred in charging the jury that in the event they found the plaintiff guilty of contributory negligence they should "reduce his damages in proportion to the amount of negligence which is attributable to him," since the court did not define the word proportion and hence failed to fix any standard by which the damages should be measured. The charge is clearly distinguishable from the instruction disapproved in Seaboard Air Line v. Tilghman, 237 U. S. 499, which is relied upon, since in that case the jury were in effect instructed to diminish the damages according to their conception of what was reasonable. The instruction given is almost in the identical language of the statute and while definition might have further conduced to an appreciation by the jury of the standard established by the statute, we think there was no error in the charge given, especially as the railroad company made no request for a charge clarifying any obscurity on the subject which it deemed existed. It is true the company made a request on the subject which the court declined to give, but that request, we are of opinion, taken as a whole instead of clarifying any ambiguity deemed to exist in the instruction which the court gave would have served to obscure it. There was no error therefore, leaving aside the question whether the requested instruction did not contain matters which if given would have been erroneous. Although we have examined the whole record and as the result of that examination conclude there is no ground for reversal, we have not particularly noticed subjects embraced by some of the assignments but not pressed in argument and others not embraced by the assignments but indirectly referred to in the argument. Affirmed. 241 U.S. Opinion of the Court. JACOBS v. SOUTHERN RAILWAY COMPANY. ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA. No. 326. Argued April 27, 1916.-Decided May 22, 1916. Under 4 of the Employers' Liability Act assumption of risk as a defense is abolished only where the negligence of the carrier is in violation of some statute enacted for the safety of employees; in other cases therefore it is retained. An experienced employee,admittedly knowing the material conditions and presence of a pile of cinders who attempts to board a moving engine with a vessel of water in his hand, must be considered as appreciating the danger and assuming the risk although at the time he may have forgotten the existence of the cinders; and this is so even if the employer was negligent in allowing the cinders to remain. There being no violation of any safety statute, the common-law defense of assumption of risk is not eliminated in such a case by the Employers' Liability Act. 116 Virginia, 189, affirmed. THE facts, which involve the construction and application of the contributory negligence provisions of the Employers' Liability Act, are stated in the opinion. Mr. Edward P. Buford for the plaintiff in error. Mr. William Leigh Williams, with whom Mr. L. E. Jeffries was on the brief, for the defendant in error. MR. JUSTICE MCKENNA delivered the opinion of the court. Action under the Federal Employers' Liability Act, as amended. April 22, 1908, c. 149, 35 Stat. 65; April 5, 1910, c. 143, 36 Stat. 291. Plaintiff in error, who was also plaintiff in the trial court and we shall so designate him, was in the service of 241 U.S. Opinion of the Court. the railway company, in interstate commerce, as a fireman. He received injuries while attempting to get on a moving locomotive. He charged negligence against the company and sued for the sum of $20,000 damages. The negligence charged was the causing and permitting to be within dangerous proximity to the tracks of the company a pile of loose cinders over which plaintiff stumbled and slipped and was drawn under the locomotive. The railway company, among other defenses, pleaded the following: "That the said plaintiff was guilty of gross contributory negligence in attempting to board the engine with a water cooler filled with water in his arms, and was also guilty of gross contributory negligence in attempting to board the engine from a pile of cinders along the track; and was also guilty of gross contributory negligence in running along the track and in attempting to board the engine without looking and seeing the pile of cinders, which could have been observed with any caution and care on his part; that the said pile of cinders had been allowed to accumulate in the same manner and in the same place as they were at the time of the accident for many years prior to the accident, and that these facts were well known to the plaintiff, and that he assumed the risk of danger from said pile of cinders, if there was any danger in allowing them to remain there." There were two trials of the action. The first trial resulted in a verdict for plaintiff for $12,000, upon which judgment was entered. The judgment was reversed by the Supreme Court of Appeals for error in the instructions. Upon the second trial the verdict was for defendant. The court refused to set it aside and grant a new trial, but ordered judgment in accordance therewith. The Supreme Court of Appeals refused a writ of error and supersedeas, the effect of which was to affirm the judgment of the trial court. 241 U.S. Opinion of the Court. The facts are practically undisputed. Plaintiff was engaged with a crew in shifting cars in the railway company's yard at Lawrenceville, Virginia. He descended from the engine at the depot to get drinking water for himself and the engineer. He returned with a can of water to mount the engine and then as to what took place he testified as follows: "I came down the railroad road and came across the track on the crossing. At the time the train was pulling out of the last track. So I waited until the train was pulling up there, and aimed to catch it, and when I aimed to catch it I made three or four steps to get on it, you know, and I got to the cinder pile before I knew it, and I tripped, and went under the engine. The cinder pile tripped me." The train was moving "just about as fast as anybody could walk, that is pretty peart walking; not over three or four miles an hour at the most." He further testified that it had been customary ever since he had been on the road "for the trainmen to get on and off the engine when it was going that way;" had seen it done hundreds of times a day and had never seen any rule forbidding it. He was about seven feet from the cinder pile when he "aimed to" catch the engine and the cinder pile was about eighteen or twenty-four inches deep and he indicated its length to be about as long as the court room and as wide as the distance from himself to a person he indicated. Describing how the cinders caused him to fall, he said they were piled "right up against the rail" and "sloped from the rail up. As I caught the engine, I made several steps, and as I hit the cinder pile they commenced miring just like mud, and it caused me to fall, and when I fell in the cinder pile the journal box kept hitting and I couldn't get up. I tried, but I couldn't. Every time I made an effort the cinder pile gave way with me. I fell down behind the cinder pile. The cinder pile was sloping, and I fell down by the journal box, and the train Opinion of the Court. 241 U. S. was passing, and I rolled down next to the rail." He further testified that if he had fallen from some other cause he could have got out of danger and that when he started to get on the engine he was not conscious of any danger from coming in contact with the pile of cinders, that it was not in his mind at all. But he testified, "I had knowledge of it, of the cinders being there, but I did not know that it was dangerous. I had forgotten them being there at the time. I was watching when I was going to step on the engine-watching my feet, where I was going to step, and was not noticing the cinder pile. It was not in my mind." It is not disputed that it was customary and had been for eleven or twelve years for the ashpans of the engine to be cleaned upon the tracks and the ashes then drawn out from the tracks and, when a lot had accumulated, taken away. The piles were of irregular height. Plaintiff contends that upon this evidence he was entitled to recover under proper instructions and that the trial court followed the decision of the Supreme Court of Appeals in giving an instruction at the second trial which it had refused to give at the first trial. The instruction is as follows: "The Court instructs the jury that if they believe from the evidence that the existence of the cinder pile was known to the plaintiff, or that he had been working on the Southern Railway at Lawrenceville for more than a year, and that the cinders had been piled at the same place in the way described by the witnesses for many years prior to the accident, and that the plaintiff had failed to show that he had made complaint or objection on account of the cinder pile, then he assumed the risk of danger from the cinder pile, if there was any danger in it, and the Act of Congress approved April 22, 1908, permits this defense, and the jury should find their verdict for the defendant." |