Arthur

A hearing in Bank having been ordered after decision in Department One, we have carefully re-examined the case. The department opinion, prepared by Shaw, J., reads as follows:

“In this case the defendant appeals from the judgment and from an order denying its motion for a new trial.

“The plaintiff sued for damages arising from the alleged negligence of the defendant. The defense was that the injury to the plaintiff arose from a danger incident to the employment, that the plaintiff was informed thereof and that he assumed the risk of injury therefrom.

“The law on the subject is well settled. Section 1970 of the Civil Code, as amended in 1907, was in force at the time of the injury, July 8, 1911. It provides that knowledge by an employee of dangers to himself incident to the work does not prevent his recovery for an injury therefrom, unless it appears that he ‘fully understood, comprehended and appreciated the dangers . . . and thereafter consented’ to proceed with his work. The question here is whether the evidence shows that plaintiff was fully informed that a horse behind which he was to work was addicted to kicking and was, for that reason, a source of danger. ‘A servant is…