Edward Douglass White

“ Granting that, in its ultimate analysis, the request involved an appreciation of the employers' liability act, nevertheless we are of opinion that the absolute want of merit in the proposition, in view of the state of the proof, caused the request, intrinsically considered, to be so unsubstantial and frivolous as not to furnish any support for the contention that its refusal raised a question concerning the interpretation of the statute. ”

“ But you reserve your exception.' From this statement it is evident that no charge whatever was given by the court concerning the assumption of risk, and hence that no exception was or could have been taken to any such charge, and that the exception which was reserved concerned the special charge as to the conduct of the engineer and the portion of the general charge concerning liability if the testimony of the plaintiff as to the negligence of the engineer was believed, the exception as to the latter having been placed on the ground that the court had been silent as to assumption of risk. ”

“ The second contention rests upon the assumption that the court below affirmed a supposed action of the trial court in erroneously instructing the jury that the effect of the employers' liability act was to abolish the doctrine of assumption of risk. ”