tion of risk relied on. In the present trial, however, the defendant, in effect, abandoned its effort to show reasonable diligence in furnishing a reasonably safe place and rested its main defense upon the proposition that the condition of the yard in regard to loose slag between the two tracks was so well known to plaintiff and so apparent that the risk thereof was assumed by him."

The defendant, no doubt, was led to pursue this course by the consideration that, though, by so doing, plaintiff would be enabled to shun Scylla, i. e., a failure to make out a case of negligence against defendant, he would fall into Charybdis, i. e., make such an obvious case thereof that it would be entitled to a peremptory instruction on the ground of assumed risk. Thus it was that it determined, like B'rer Rabbit, to "lay low" and let plaintiff have his own way as to the material conditions of the portion of the yard at Oneida where he alighted, then and theretofore, helping out by cross-examination of plaintiff's witnesses as to this particular. It, perhaps, was in pursuance of this policy that it refrained from introducing witnesses whose depositions it had taken, possibly introduced on the former trials, one of whom, at least, was familiar with those conditions. And it must be said that apparently plaintiff did not come far short of thus putting himself out of court and, if the case had been submitted on his evidence, possibly he would have succeeded in so doing.

[1-5] We face then the question which this case presents for our determination, i. e., whether, as a matter of law, plaintiff had assumed the risk of the defendant's negligence, of which he complains. The meaning of this question is, not whether the weight of the evidence was to the effect that he had so done, but whether there was any substantial evidence to the effect that he had not. For, only in case there was no such evidence can it be said that as a matter of law he had; and in disposing of it we are conscious that we have to be on our guard in a certain particular.

In the case of Butler v. Frazee, 211 U. S. 459, 29 Sup. Ct. 136, 53 L. Ed. 281, Mr. Justice Moody noted the fact that modern thought is against the defense of assumption of risk, and stated that there was "a notorious unwillingness" on the part of juries "to apply the rule." The particular in which we feel that we should be on our guard is to see to it that there is no unwillingness on our part to enforce this rule, and that we are not to be led thereby into any insincere argumentation to deny defendant the benefit of it.

There are several propositions in this connection as to which there ought to be no controversy. Some of them favor plaintiff, and some defendant. It will help if we first dispose of them so that the single question on which the case hangs may be seen in all its nakedness. Those that favor defendant are these: It is trite that two things are essential to make out the defense, to wit, knowledge of the defective condition out of which the risk arose, and appreciation of the risk arising therefrom. These two, indeed, may be reduced to one, i. e., knowledge of such condition and of such risk. In the case of Chicago & E. R. Co. v. Ponn, 191 Fed. 682, 112 C. C. A. 228, Judge Hollister said that the word appreciated "does not mean more than actual know!

edge. It does not mean less." Here, there can be no question that plaintiff appreciated, i. e., knew, the risk. The quotation heretofore made from his testimony contains an express admission that he did. The only possible question is whether he knew the conditions out of which the risk arose.

Again, it is not essential that plaintiff knew that the particular piece of slag, stepping on which caused his injury, was there. It is sufficient if he knew that such slag, i. e., slag of that character or slag substantially as large and as dangerous as that piece, were lying loose in and about the place where he alighted.

And again, his denial of such knowledge is not merely not conclusive of the question. It may be of no value whatever in determining it. Notwithstanding such denial, it may be that it should be taken that he did in fact have such knowledge.

In the case of Chesapeake & Ohio Ry. Co. v. Proffitt, 241 U. S. 462, 36 Sup. Ct. 620, 60 L. Ed. 1102, Mr. Justice Pitney said that the employé was "not to be treated as assuming a risk that is attributable to the employer's negligence until he becomes aware of it, or it is so plainly observable that he must be presumed to have known of it." Language to the same effect may be found in numerous decisions of the Supreme Court. Washington & G. R. R. Co. v. McDade, 135 U. S. 554, 573, 10 Sup. Ct. 1044, 34 L. Ed. 235; Choctaw O. & G. R. R. Co. v. McDade, 191 U. S. 64, 68, 24 Sup. Ct. 24, 48 L. Ed. 96; Butler v. Frazee, 211 U. S. 459, 467, 29 Sup. Ct. 136, 53 L. Ed. 281; Schlemmer v. Buffalo R. & P. Co., 220 U. S. 590, 596, 31 Sup. Ct. 561, 55 L. Ed. 596; Texas & Pacific R. R. Co. v. Harvey, 228 U. S. 319, 321, 322, 33 Sup. Ct. 518, 57 L. Ed. 852; Gila Valley, G. & N. R. Co. v. Hall, 232 U. S. 94, 102, 34 Sup. Ct. 229, 58 L. Ed. 521; Seaboard Air Line R. R. Co. v. Horton, 233 U. S. 492, 504, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475.

The presumption here referred to, I take it, is conclusive. It cannot be overthrown or affected to any extent by a mere denial on the part of the employé. In Butler v. Frazee, supra, a peremptory instruction was upheld in face of a denial by the plaintiff, whose hand had been injured, whilst feeding a mangle in a steam laundry. The denial there, however, was of appreciation and not of knowledge of the condition out of which the risk arose; but, if such a denial was of no avail, a denial of such knowledge could not have been of any more value. Mr. Justice Moody said:

"The contention, however, is that, as the plaintiff testified in substance that she did not know and appreciate the danger which she was encountering, that testimony, with the other facts in the case, raised an issue for the jury, and that it could not be said, as a matter of law, that the risk had been assumed. This contention is sustained by a well-considered case. Stager v. Troy Laundry Co., 38 Or. 480 [63 Pac. 645, 53 L. R. A. 459].”

To this contention he responded:

"But where the conditions are constant and of long standing, and the danger is one that is suggested by the common knowledge which all possess, and both the conditions and the dangers are obvious to the common understanding, and the employé is of full age, intelligence, and adequate experience, and al!

these elements of the problem appear without contradiction fom the plaintiff's own evidence, the question becomes one of law for the decision of the court."

The recent case of Jacobs v. Southern R. Co., 241 U. S. 229, 36 Sup. Ct. 588, 60 L. Ed. 970, which in some of its features is more like the one in hand than any other in the Supreme Court, also involved a denial of appreciation, i. e., knowledge of the risk. There the question of the assumption of risk was left to the jury, which found in defendant's favor. Seemingly, it was urged that because of this denial that question should not have been left to the jury. Scant consideration, however, was given to the denial. Mr. Justice McKenna said:

"He (i. e., the fireman who was injured whilst attempting to mount his engine when in motion from a cinder pile) admitted a knowledge of the 'material conditions,' and it would be going very far to say that a fireman of an engine who knew of the custom of depositing cinders between the tracks, knew of their existence, and who attempted to mount an engine with a vessel of water in his hands holding 'not over a gallon,' could be considered as not having appreciated the danger and assumed the risk of the situation because he had forgotten their existence at the time and did not notice them."

That this presumption is so strong indicates how "rigorous and vigorous" must be the circumstances which give rise to it. They may be thus put: The defective condition and the risk must have been so obvious and the employé's relation thereto must have been so close and intimate that he could not help but have known of them. This makes a denial by him of knowledge thereof in effect a denial of a physical fact. The case of Butler v. Frazee, supra, is an apt illustration of the circumstances under which the presumption arises. The defect in the mangle complained of consisted in the excessive height of the finger guard rail above the feed board. This was obvious to any one looking at it. The plaintiff's relation to the defective condition and the risk was as close and intimate as it could be. As she fed the mangle, it was right in front of her, and she had worked at it for some months before she was injured. This, of course, was a strong case for the presumption to arise. It was so strong that plaintiff did not deny that she knew of the defective condition. Conceivably cases may exist not so strong as this and yet strong enough to give rise to the presumption. But in one and all, in order thereto, the defective condition. and the risk must have been so obvious and the employé's relation thereto must have been so close and intimate that he could not help but have known of them.

It must be taken, therefore, that plaintiff's denial of knowledge of the presence of slag such as that upon which he stepped was not only not conclusive as to his state of knowledge, but it may not have been sufficient to make the question in regard thereto one for the jury to determine. The circumstances may be so coercive that it must be conclusively presumed that he had knowledge thereof.

[6, 7] The propositions referred to favoring plaintiff are two. Knowledge on his part of the conditions out of which the risk which he incurred arose cannot be presumed from the fact that an ordinarily prudent person in like business, under like circumstances, would have

ascertained that condition either just before he jumped or theretofore. This fact made out a case of contributory negligence, not one of assumption of risk. That the two defenses are distinct is nowhere better settled than by the decisions of the Supreme Court of the United States. The matter is dealt with in the following cases: Choctaw, O. & G. R. Co. v. McDade, supra, 191 U. S. 68, 24 Sup. Ct. 24, 48 L. Ed. 96; Schlemmer v. Buffalo R. P. Co., supra, 220 U. S. 596, 31 Sup. Ct. 561, 55 L. Ed. 596; Seaboard A. L. R. R. Co. v. Horton, supra, 223 U. S. 503, 504, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Yazoo & M. V. R. R. Co. v. Wright, 235 U. S. 379, 35 Sup. Ct. 130, 59 L. Ed. 277.

In the Schlemmer Case, Mr. Justice Day said that the distinction. between the two defenses was "practical and clear," and, in the Horton Case, Mr. Justice Pitney said that it was "simple." This court, speaking through Judge Hollister, in the Ponn Case, 191 Fed. 687, 112 C. C. A. 228, said that they were "entirely distinct." The distinction was again noted by it in Sterling Paper Co. v. Hamel, 207 Fed. 300, 304, 125 C. C. A. 44, and Yazoo R. Co. v. Wright, 207 Fed. 281, 285, 125 C. C. A. 25. In the case of McMyler Mfg. Co. v. Mehnke, 209 Fed. 5, 126 C. C. A. 147, through Judge Denison, it said:

"When each, alike, constituted a complete defense, the distinction was largely academic, and it was natural that the terms should be used with some confusion; but, now that statutes have made differences in the defensive value of the two things, the distinction has become vital and has been the subject of much judicial inquiry."

He dealt therein with what he termed the "seeming conflict" between the statement of Mr. Justice Holmes in the first Schlemmer Case, 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681, that assumption of risk "obviously shades into negligence as commonly understood," and that "the difference between the two is one of degree rather than of kind," and that of Mr. Justice Day in the second one that "there is, nevertheless, a practical and clear distinction between the two."

Knowledge of the risk is the watchword of the defense of assumption of risk; want of due care in view thereof is that of contributory negligence; and these are distinct conceptions. Conceivably, at least, it is possible for an employé to have knowledge of a certain risk, when he enters the employment, and at the same time to exhibit a want of due care in entering it in view thereof. But it would seem that the decisions in the Schlemmer and Mehnke Cases are against treating such conduct as making out the defense of contributing negligence under a statute abolishing the defense of assumption of risk and not that of contributory negligence. It is only in case the employé, thereafter, in view of his knowledge of the risk, exhibits a want of due care in his behavior in relation thereto, that he has been guilty of such contributory negligence as to defeat the right of action. In such a case, assumption of risk and contributory negligence, but for a statute abolishing the one or limiting the effect of the other, coexist, each as a complete defense to the action. They need not, however, coexist. In the absence of statute, conceivably at least, there may be assumption of risk without contributory negligence. This is so, in case, at

the time the employé enters the employment, he knows of the risk, and with such knowledge a prudent person would encounter the risk of entering the employment. So there may be contributory negligence without assumption of risk. This is the case where the employé in the course of his employment, with no previous knowledge of the risk, is suddenly confronted therewith and has no freedom of choice between quitting and continuing in the service, but fails to exercise due care in view of the risk with which he is thus confronted. So if a prudent person, under the circumstances of the particular case, would have discovered the existence of the risk and acted accordingly, a case of contributory negligence would be made out, but not assumption of risk. This is so because knowledge of the risk is essential to the defense and this does not exist. All that exists is that the employé ought to have known.

In the case of Texas & Pacific R. R. Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188, a switchman was injured whilst attempting to uncouple two cars delivered to defendant by another railroad company to be locally handled and then returned, by reason of the coupling apparatus being defective. The court held that defendant owed plaintiff the duty of exercising due care to furnish him reasonably safe appliances in the way of coupling apparatus as to foreign cars delivered to it to be locally handled the same as in case they were delivered to be handled over its road. The defendant requested an instruction to the effect that, if plaintiff knew or by the exercise of ordinary care could have known that it was the custom of the defendant company not to inspect such cars, he assumed the risk of being injured by reason of the defects in such cars. The court struck out the words "or by the exercise of ordinary care could have known" and gave the instruction thus altered. The action in so striking was approved. In the case of Choctaw, O. & G. R. Co. v. McDade, supra, the jury were instructed that if the deceased employé either knew of the danger of collision with the water spout, or, by the observance of ordinary care upon his part, ought to have known of it, no recovery could be had. Mr. Justice Day, as to this portion of the charge, said:

"The charge of the court upon the assumption of risk was more favorable to the plaintiff in error than the law required, as it exonerated the railroad company from fault if, in the exercise of ordinary care, McDade might have discovered the danger. Upon this question the true test is not in the exercise of care to discover dangers, but whether the defect is known or plainly observable by the employé."

[8, 9] The other proposition favoring plaintiff is that it does not follow from the fact that the plaintiff knew that pieces of slag of the size of a hen's egg and smaller were between the tracks in the yard at Oneida north of the road crossing and that it was dangerous for him to step on one of them in alighting from the train as he did, so that if he had been injured by stepping on such a piece he could not have recovered because he had assumed such risk, that he had assumed the risk of stepping on a loose piece of the character of that on which he did step. It seems to have been the thought of that portion of the charge to the jury as to what was essential to make out the defense