c30:No. 13814

GANEY, Circuit Judge
(dissenting).
I dissent from the result here reached by the majority.
It is here held that the failure of the trial judge to distinguish between the doctrine of assumption of risk and that of contributory negligence, under the factual situation obtaining, is reversible error.
It is of first importance here to remember, (1) that the jury having heard nothing about the doctrine of assumption of risk from any witness in the case, or from any pleading, document, etc., or from the court, it, accordingly, was ignorant of any consequences flowing from such doctrine; and (2) that this Court found no quarrel with the trial judge’s charge with respect to negligence or contributory negligence, as such, and, affirmatively, it must be said that the charge with respect to these matters was clear and precise, but only that its failure, as has been adverted to above, to differentiate assumption of risk from contributory negligence was fatal error.
The facts here are neither peculiar nor unique and turn only on the question of the alleged negligence of the defendant in maintaining a hazardous silicon condition in the shop where the plaintiff worked for eighteen years and, as a result thereof, contracted silicosis. A verdict was rendered for the defendant.
The majority believe that a more detailed explanation should have been given to the jury by way of defining the doctrine of assumption of risk and states: “Had an adequate distinction between conduct constituting contributory negligence and that which would have constituted assumption of risk been pointed out to the jurors in the charge, the jury might well have reached a different verdict. In our opinion the failure to charge properly as to this distinction constituted reversible error under the circumstances.”
In the first instance, it seems to me rather clear, since the verdict was for the defendant, that the jury could have only reached the conclusion it did on the ground, (1) that the plaintiff was not suffering from silicosis, as the defendant’s medical experts contended, or (2) that the defendant was not negligent. The jury, accordingly, never reached the question of contributory negligence, for if plaintiff was found suffering from silicosis and not having been found negligent, they could not possibly have gotten to the question of contributory negligence. If by some means they did, there would have been a verdict for the plaintiff for at least one dollar and, of course, if they found he did not have silicosis, they, likewise, would not have reached the question of contributory negligence, as that would have been the end of the case.
Basic to the question here involved, is the amendment to the Federal Employers’ Liability Act of 1939. In considering the amendment, the Supreme Court, in Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, said, with finality, that every vestige of the doctrine of assumption of risk was obliterated. Furthermore, in Gowins v. Pennsylvania Railroad Co., 6 Cir., 299 F.2d 431, there was occasion to quote Mr. Justice Frankfurter’s concurring opinion in the Tiller case, supra, 318 U.S. at p. 72, 63 S.Ct. at p. 453, wherein he stated: “Because of its ambiguity the phrase ‘assumption of risk’ is a hazardous legal tool. As a means of instructing a jury, it is bound to create confusion. It should therefore be discarded.” Further, in the Court’s opinion in Gowins v. Pennsylvania Railroad Co., supra, 299 F.2d at p. 433, it was stated: “If the instruction on contributory negligence was a correct one, we do not think it was error to refuse to instruct on the question of assumption of risk. De Pascale v. Pennsylvania R. Co., 180 F.2d 825, 827, C.A. 3rd.”
In Seaboldt v. Pennsylvania Railroad Co., 3 Cir., 290 F.2d 296, the sage admonition of the late Judge Goodrich, quoted in the majority opinion, has genuinely compelling force here.
In Potter v. Brittan, 3 Cir., 286 F.2d 521, cited by the majority, it was necessary for the Court to point up both contributory negligence and assumption of risk because in Massachusetts both were available as a defense which, of course, does not obtain in this instance.
In Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282, cited by the majority, the plaintiff had worked thirty years as a foreman on steam locomotives and ceased work in May, 1940, because he alleged that over the years he had contracted silicosis because of his inhalation, in the performance of his job, of silica dust in the air which came from the sand used in the locomotive sandboxes and sucked into the cab in which he worked. The holding of the court in reversing the Missouri Supreme Court was that under both the Federal Employers’ Liability Act and its implementing Act, the Boiler Inspection Act, this occupational hazard was compensable. Since the amendment to the Federal Employers’ Liability Act barring the doctrine of assumption of risk as a defense went into effect in August, 1939, it can be seen that the vast portion of the plaintiff’s cause of action was subject to this defense and the only reference to the doctrine, since no instruction with respect to it was asked for and none given, was footnote 18, page 180, of 337 U.S., p. 1029 of 69 S.Ct., which states: “Nor do we find merit in respondent’s contention that Urie, prior to the 1939 amendment abolishing assumption of risk as a defense to ordinary negligence suits under the Federal Employers’ Liability Act, 45 U.S.C. § 54, 53 Stat. 1404, amending 35 Stat. 66, assumed the risk of injury.” Further, in footnote 30, page 188 of 337 U.S., p. 1033 of 69 S.Ct., the Court cites Seaboard Air Line v. Horton, 233 U.S. 492, 503, 34 S.Ct. 635, 58 L.Ed. 1062, which states that previous to the amendment, assumption of risk was a complete defense, but was abolished in 1939. Accordingly, the Court was concerned with a very short period, from August, 1939, to May, 1940, during which the amendment was applicable and there, as adverted to above, it ruled out any consideration of assumption of risk.
I have no quarrel with Schlemmer v. Buffalo, Rochester & Pittsburgh R. Co., 205 U.S. 1, 12-13, 27 S.Ct. 407, 51 L.Ed. 681, cited by the majority, as Mr. .Justice Holmes’ treatment of the doctrine of assumption of risk concerns itself with the year 1906 when the doctrine was likewise available as a defense.
In Blair v. Baltimore & Ohio R.R., 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490, also cited by the majority, suit was brought by the plaintiff against the defendant in the Allegheny County Courts for injuries occurring on June 26, 1939, under the Federal Employers’ Liability Act for negligence which, as can be seen, was previous to the 1939 amendment. After the plaintiff had secured a verdict, a new trial was granted by the trial judge because he alleged he erred in submitting to the jury defendant’s liability for failure to provide adequate equipment for the work, as well as failure to provide sufficient help, and the carelessness of its employees, and that after reflection, he concluded there was no evidence adequate to support these findings and, as has been adverted to, allowed a new trial. Both parties appealed to the Pennsylvania Supreme Court, which reversed the matter, holding that the petitioner had assumed the risk of injury by remaining in the employment and that there was no evidence to support negligence in any respect. Here, the Supreme Court reversed the judgment of the Supreme Court of Pennsylvania, and remanded the case for a new trial. It is stated at p. 605 of 323 U.S., at p. 548 of 65 S.Ct.: “The court below, however, thought that the plaintiff should not recover because he had assumed the risk of this danger. It is to be noted that at the time this case was tried Congress had passed an act which completely abolished the defense of assumption of risk. 53 Stat. 1404. Tiller v. Atlantic Coast Line, supra.”
In Atlantic Coast Line R. Co. v. Burkett, 5 Cir., 192 F.2d 941, which the majority cites, the defendant adverted, in his answer, that any injuries sustained by the plaintiff resulted entirely and solely from his negligence which, in effect, was the doctrine of assumption of risk under another name. In view of this, the trial court’s charge stated, at page 943 of 192 F.2d: “I charge you further, gentlemen of the jury, that in any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to any of its employees, such employee shall not be held to have assumed the risks of _his employment in any case where such injury resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” The Court of Appeals then went on to say: “Other parts of the charge emphasized the necessity of proof of the defendant’s negligence as a prerequisite to a verdict for the plaintiff.” The Court then stated, by way of affirmance of the trial judge’s charge, the following: “Under the pleadings and evidence in this case, we think that the trial judge was justified in thinking that in the absence of a charge on assumption of risk, the jury might have considered that defense under the guise of nonnegligence. As said in the Tiller case, supra [318 U.S. 54, 63 S.Ct. [444] 447 (87 L.Ed. 610) ]: ‘Unless great care be taken, the servant’s rights will be sacrificed by simply charging him with assumption of risk under another name’ ”. It is apparent here that by reason of the pleading, particularly the answer, that there was justification for the court advising the jury that the plaintiff did not assume the risks of his employment, which is a far cry from giving a mandate that the court must bring the doctrine into play without any necessity therefor, shown by the defendant in any pleadings, evidence, documents, etc. The case is distinguishable on this ground, for otherwise it would be against the weight of authority.
In Ramsouer v. Midland Valley R. Co., 8 Cir., 135 F.2d 101, cited in the majority opinion, footnote 15, the injury occurred on January 10, 1937, and, of course, discussion of assumption of risk in connection with negligence was perfectly proper since the accident took place before the amendment of August, 1939.
Therefore, it would seem, in the light of precedent to date, that the doctrine of assumption of risk is non-existent and, although the phrase is sometimes loosely used, it merely means that the defendant is not negligent, as Mr. Justice Frankfurter points out in his concurring opinion to the Tiller case at p. 69 of 318 U.S., at p. 452 of 63 S.Ct. “Industrial enterprise entails, for all those engaged in it, certain hazards to life and limb which no amount of care on the part of the employer can avoid. In denying recovery to an employee injured as a result of exposure to such a hazard, where the employer has in no sense been negligent or derelict in the duty owed to his employees, courts have often said that the employee ‘assumed the risk.’ Here the phrase ‘assumption of risk’ is used simply to convey the idea that the employer was not at fault and therefore not liable.”
However, the trial judge, here, in order to properly comply with the opinion expressed by the majority, would, of necessity, have been compelled to define to the jury the common law doctrine of assumption of risk in its entirety, since the plaintiff’s conduct embraced the whole factual area, and then to properly instruct them on the doctrine of contributory negligence. Since the amendment of 1939 abolished the doctrine of assumption of risk as a defense, it is extremely difficult to determine to what effect, and what purpose, this differentiation would have served. It can no longer be doubted that the doctrine of assumption of risk as a defense to any liability, where there is negligence on the part of the employer, has been written out of the Act, and if it cannot avail itself of this defense in the main action, it, of necessity, must follow that it is written out of the Act where it pleads the contributory negligence of the plaintiff, a defense making for mitigation of its liability.
If the purpose of the majority here required the trial judge to warn the jury that risks, knowingly taken by the plaintiff, obviously observable to him, and acquiesced by him over a period of time, were not to be considered by the-jury, in its determination of whether the plaintiff was contributorily negligent, it would be an almost insuperable-task for the trial judge to distinguish for the jury this factual area, from that, area in which the plaintiff’s conduct is-to be measured by the standard of due care under the circumstances. This for the reason that the risks, adverted to above, would be a complete bar to the plaintiff’s recovery, while violation of the standard of care required of him would be only partially so.
It is sufficient to say that since the amendment of 1939, one must consider the whole ball, due care under all the circumstances. This latter phrase envelops the whole factual area of the plaintiff’s conduct and takes into consideration all of the conditions surrounding his employment, and if he is injured by the obvious and that which is plainly observable, to that extent he violates the standard of care imposed upon him and his recovery in damages is mitigated' to that degree from that which he would otherwise recover under the doctrine of' comparative negligence as provided for in the Act. Additionally, to contrast a-doctrine no longer available as a defense with contributory negligence, which is available, to mitigate damages to the defendant, would seem to me to be a futile gesture insofar as it might be helpful to the plaintiff.
So under the proper charge given by the court, what the jury was concerned with and what the plaintiff does assume-are not the risks of his employment, since the amendment, but the risk of economic loss occasioned by his violating a standard of care to which he is-held.
Again, to detail this legal refinement, even assuming something of vigor does-remain in the doctrine, would make it. requisite for the trial judge to spell: oút with clarity and precision concepts which one skilled in the law finds no little difficulty with. On the other hand, the capacity of the ordinary juror, in its proper understanding, if not completely beyond his normal talents of discernment, at least poses to my mind such a formidable risk of his confusion that a far stronger ease is made for its rejection than acceptance.
I would affirm the judgment of the lower court.
. In its present form, 45 U.S.C.A. § 54, reads as follows: “§ 54. Assumption of risks of employment. In any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such iivjury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier; and no employee shall be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safey of employees contributed to the injury or death of such employee. Apr. 22, 1908, c. 149, § 4, 35 Stat. 66; Aug. 11, 1939, c. 685, § 1, 53 Stat. 1404.” (Amendment italicized.)

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