Wiley Blount Rutledge

“ There are decisions which, in the guise of applying assumption of risk, do no more than shift to the injured employee the burden of his fellow servants' negligence, while others appear to identify the doctrine with mere contributory negligence. Old confusions die hard. ”

“ If anything of assumption of risk remained in relation to the negligence of a fellow employee, it was such as required a showing that the injured one knew of and accepted the risk in the particular incident or situation which brought about his injury. There was therefore in this case, consistently with the statute, no general assumption by Owens, by virtue of his acceptance or retenti n of the work, of the risk which caused his death in so far as it consisted in negligence by Koefod or the engineer. ”

“ Petitioner is the widow of an employee of respondent. In 1941 she brought this suit under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-59. Her husband's death occurred in the course of his employment as foreman of a switching crew on February 16, 1939. She claims this was due to respondent's negligence. Petitioner sought to recover in one cause of action for Owens' suffering before death and in another for his death. The trial judge withdrew from the jury, for insufficiency of proof, four of the five separate grounds of negligence alleged. ”