mountain side. None of the fourteen men suggested that it was dangerous to throw the rail from the mountain side, nor did they discuss this. I did not think it was dangerous." The plaintiff also put in evidence chapter 67 of the session Laws of Colorado of 1901, which, and as claimed by plaintiff, entirely abrogated the doctrine that the employer is not responsible for an injury inflicted upon his servant caused by the negligence of a mere fellow servant with the injured servant, and made the employer liable, in such case, for the negligence of any agent, servant, or employe of the employer in the same maner and to the same extent as if the carelessness, omission of duty, or negligence causing the injury was that of the employer. It was conceded by the defendant that the doctrine by such statute was abrogated, but it contended that as a condition precedent to a recovery in such case the injured servant was required to give the employer written notice within sixty days from the occurrence of the accident, and as provided by an act passed and approved in 1893 (Laws 1893, c. 77), being sections 1511a and 1551b, c. 37, Mills' Ann. St., which was put in evidence by the defendant. It was shown that no notice was given the defendant by the plaintiff. Various decisions of the Supreme and district courts of Colorado and the federal courts bearing on the acts in question were also put in evidence, some by the plaintiff, others by the defendant. It was contended by the plaintiff that the act of 1893 was repealed by the act of 1901, and hence the giving of a written notice to the employer was not required in order to render him liable for the negligence of a mere fellow servant. The trial court holding with the plaintiff in such contention in paragraph thirteen of the charge, instructed the jury as follows: "You are instructed that under the laws of the state of Colorado, in which the plaintiff was injured, and in which state his cause of action, if any, arose, if he was in the exercise of due care at the time, his employer would be liable for injuries sustained by him, resulting from the care lessness, omission of duty, or negligence of the employer, or resulting from the carelessness, omission of duty, or negli

gence of any other agent, servant, or employe of the employer in the same manner and to the same extent as if the carelessness, omission of duty, or negligence, causing the injury was that of the employer." But in paragraph twenty-three of the charge the court also instructed the jury as follows: "If you should find that the acts of negligence upon which the plaintiff relies for a recovery in this case were due solely to the fault of the foreman in charge of the work, and if you should also find that in the prosecution of the work of loading rails on the day in question the principal duty of this foreman was that of superintendence, then you are instructed that this is a complete bar to any recovery in this case. I need not stop to tell you why this is so, it being sufficient for the purposes of this case to say that under the laws of Colorado, where the plaintiff met with his injuries, the plaintiff is precluded from recovering anything on that ground, if you so find the facts from the evidence." In stating the alleged negligence the court charged the jury that "the only acts of negligence alleged against the plaintiff's employer for you to consider are, first, whether the employer negligently failed to provide any braces along the sides of the car; and, second, whether the rails on the car were negligently and improperly piled." The court expressly charged the jury that they could not render a verdict for the plaintiff upon the alleged negligence that the foreman "carelessly and negligently ordered the plaintiff and said other employees to go into the ditch and pick up the curved rail lying therein and while standing in the ditch to throw a curved rail upon the car," and that they could not consider such allegations "as any ground for enabling the plaintiff to recover against the defendant, and, so far as such acts of the foreman in directing the workmen to enter the ditch, pick up, and throw the rail are concerned, there is nothing in those acts to warrant holding the defendant liable to the plaintiff;" and further charged them "that the plaintiff does not claim that the defendant was negligent because it failed to load from the opposite side of the car the rail which fell and broke his leg, and the defendant is

not obliged to meet any such issue, and you are not to consider it."

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It is first urged by the appellant that the court erred in giving paragraph thirteen of the charge. The question as to the correctness of that charge involves a construction of the Colorado statute. We find it unnecessary to express an opinion on that subject. Even though it should be held that the trial court in that paragraph gave the statute referred to the proper construction, and correctly ruled that under such statute the giving of a written notice to the defendant by the plaintiff was not essential to render the defendant liable for the negligence of a mere fellow servant with the plaintiff, yet we are also of the opinion that the judgment of the court below must be reversed and set aside because of the views entertained by us on other assignments. We think on the evidence adduced it conclusively appears that the plaintiff assumed the risk, and upon that ground, if not upon others, he was not entitled to recover, and that the defendant's motion to take the case from the jury and to direct a verdict in favor of the defendant ought to have been granted. It, of course, is conceded that the plaintiff assumed the usual and ordinary risks incident to the employment and the extraordinary risks known to and comprehended by him, or which were so open and obvious that he is charged with knowledge and a comprehension of them. The plaintiff was twenty-three years of age, and it must be presumed that he was a man of ordinary intelligence and capacity. He had worked for the defendant sixteen or seventeen days "changing rails." True, he had not engaged in loading rails before the day on which he was injured. But the loading of rails from the ground to flat cars, under the circumstances as disclosed by the evidence, does not involve anything difficult of comprehension. The character of such work is not complex, but is very simple. The risks involved and the dangers to which one may be exposed from a rail slipping or falling as it is lifted from the ground and thrown on the car in the manner and under the circumstances disclosed by the evidence are

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not only open and obvious, but incident to the work itself, and easily understood and readily comprehended. That a rail, thrown under such circumstances on other rails upon the car, may not rest and remain in the position, or at the place, where thrown, but may bound or slide, or roll off, is a matter of common knowledge and general experience. Special experience in such work is not necessary to acquire knowledge of the risks incident thereto, or to comprehend the attending dangers arising therefrom. Plaintiff all forenoon and until he was hurt was engaged in loading rails on the cars. He saw and knew the manner in which the work was done and the rails thrown and piled on the cars. He saw and observed this when the first two cars were loaded, and when the forty-eight straight rails were loaded on the third car, and until it was moved to the crooked rails lying in the ditch. At that place he testified, he could not see the top or floor of the car because the surface of the ground where he was standing was about two feet below the level of the ties. But he knew the number of rails on the car and the position and manner in which they had been placed and piled, and that there was a space on the floor of the car where there were no rails, just before the car was moved to the crooked rails. That condition had not changed, but remained just as he saw it and knew it before the car was moved to the crooked rails in the ditch, and before he, with others, undertook to load them. Though at the particular time when the crooked rails were lifted and thrown he could not see the floor of the car, yet from what he had just seen. and observed a moment before he well knew the position of the rails on the car on which he was about to throw the crooked rail. He heard, the suggestions made to the foreman that the rail be carried to and loaded from the other side, and that braces had better be put up before the crooked rail was loaded. He also testified that he knew that the braces had not been put up. Of course, that was obvious and open to the view of any one situated as was the plaintiff. He further testified that the only reason that the men desired to carry the rail to and load it from the other side was

because it was easier to there throw and load it, and not that much difficulty was found, or that it was dangerous, to load it on the side of the car where it was lying. This is not a case where it may be presumed that the master, because of his superior knowledge, may, better than the servant, have comprehended the danger, or where the master had better opportunity to ascertain the extent and character of the danger to which the servant was exposed, or where the servant might be justified in yielding his own judgment and deferring to that of his master, or where relying upon promises, assurances, or representations of the master the servant was lulled into a sense of security. Though it should be said that the accident would not have happened had the braces been put up, and that they were not put up because of the orders or directions of the foreman, yet the plaintiff well knew that the braces were not up, and whatever danger was involved in loading the rails without them was just as readily understood and comprehended by him as by the master. It is a case where the servant, with the master, had equal knowledge, and equal means of knowledge, and where the servant, equally with the master, understood and compre hended the dangers and risks involved, and voluntarily undertook the performance of the work. If a court in submitting the case to the jury should inform them that the plaintiff assumed the usual and ordinary risks incident to the employment, and all other risks and dangers of which he had knowledge and which were appreciated by him, or which were so obvious and open as to imply knowledge and a comprehension of them by him, what disputed fact was there to submit to the jury for their finding? Should the jury find that the plaintiff did not know that the braces were not up, or that he did not appreciate or comprehend that rails thrown on the pile of rails on the car might bound, or slide, and, without braces, roll or fall off after they had been thrown on, such a finding would clearly be against the evidence. And that is just what the jury did in this case. The court charged them that "if the manner in which the rails were piled and the absence of braces from the side of