Sasser v. Lee Lumber Co.

On Rehearing. PROYOSTY, J. After again going over the testimony in this case, we have come to the same conclusion arrived at on the first hearing, namely, that; whatever sag there may have been in the rail at the place in question, it could not have been of so marked a character as to attract special attention; or, in other words, it could not have been anything more than an ordinary sag, such as are inevitable upon the spur tracks of logging roads, hastily and roughly laid as they are, with little or no surfacing and grading, being intended only for a few weeks’ use. A sawmill cannot be expected to construct these roads with all the elaborate care bestowed upon commercial railroads. An employé upon a road of that kind assumes the risk of such ordinary sags. The risk is incident to the employment. As a matter of fact, the plaintiff knew perfectly well that defects of that kind existed in this road. Perhaps the consequences of risks of that kind, thus incident to an employment, and which the employé is bound to assume, ought not to fall upon the employé, or his family, but be borne, as far as practicable, by the industry in connection with which the risk is incurred; and, doubtless, that view of the matter is fast being adopted, but as yet a settled jurisprudence, changeable only by statute, places the burden of such risks upon the employé. The decree heretofore handed down in this case is therefore reinstated and affirmed.