# Kohn v. McNulta/Opinion of the Court

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United States Supreme Court
147 U.S. 238
Kohn v. McNulta
So far as the mere matter of procedure is concerned, there was obviously no error. The intervention was a proceeding in a court of equity, and that court may direct a verdict by a jury upon any single fact, or upon all the matters in dispute. But such verdict is not binding upon the judgment of the court; it is advisory simply, and the court may disregard it entirely, or adopt it either partially or in toto. Barton v. Barbour. 104 U.S. 126; 2 Daniell, Ch. Pl. & Pr. (5th Ed.) 1148, and cases cited in note. Improvement Co. v. Bradbury, 132 U.S. 509, 516, 10 Sup. Ct. Rep. 177, 179, and cases cited.
With respect to the merits of the case, the decision of the court was also clearly correct. The intervener was 26 years of age. He had been working as a biacksmith for about six years before entering into the employ of the defendant. He had been engaged in this work of coupling cars in the company's yard for over two months before the accident, and was therefore familiar with the tracks and condition of the yard, and not inexperienced in the business. He claims that the Wabash freight cars, which constituted by far the larger number of cars which passed through that yard, had none of those deadwoods or bumpers; but, inasmuch as he had in fact seen and coupled cars like the ones that caused the accident, and that more than once, and as the deadwoods were obvious to any one attempting to make the coupling, and the danger from them apparent, it must he held that it was one of the risks which he assumed in entering upon the service. A railroad company is guilty of no negligence in receiving into its yards, and passing over its line, cars, freight or passenger, different from those it itself owns and uses. Baldwin v. Railroad Co., 50 Iowa, 680; Railway Co. v. Flanigan, 77 Ill. 365; Railroad Co. v. Smithson, 45 Mich. 212, 7 N. W. Rep. 791; Hathaway v. Railroad Co., 51 Mich. 253, 16 N. W. Rep. 634; Thomas v. Railway Co., (Mo. Sup.) 18 S. W. Rep. 980.
It is not pretended that these cars were out of repair, or in a defective condition, but simply that they were constructed differently from the Wabash cars, in that they had double deadwoods or bumpers of unusual length, to protect the drawbars. But all this was obvious to even a passing glance, and the risk which there was in coupling such cars was apparent. It required no special skill or knowledge to detect it. The intervener was no boy, placed by the employer in a position of undisclosed danger, but a mature man, doing the ordinary work which he had engaged to do, and whose risks in this respect were obvious to any one. Under those circumstances, he assumed the risk of such an accident as this, and no negligence can be imputed to the employer. Tuttle v. Railway Co., 122 U.S. 189, 7 Sup. Ct. Rep. 1166; Ladd v. Railroad Co., 119 Mass. 412.
The decision of the circuit court was right, and it is affirmed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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