The opinion
HOUGH, Circuit Judge
(dissenting). With the statement of facts contained in the opinion of the court I entirely agree.
The rule of law was stated by this court in New York, etc., R. R. v. Vizvari, 210 Fed. 127 , 126 C. C. A. 632 , L. R. A. 1915C, 9, that, “where the facts are clearly established and the conclusion to be drawn from the facts is a matter which cannot reasonably be the subject of any doubt,” the question is for the court. The further statement on the same page that it is radically unsound to view as one of law a claim of negligence' on undisputed facts must be regarded as obiter. Thus in *780 many litigations it is for the court to fix the standard of reason. This court has often done so; compare Lindsay v. New York, etc., Co., 112 Fed. 384 , 50 C. C. A. 298 ; Terry v. Schmidt, 116 Fed. 627 , 54 C. C. A. 83 ; Brown v. Hitritz, 192 Fed. 528 , 113 C. C. A. 84 , with the Viz-vari Case, and the present opinion.
To say, in effect, that a man does not assume the risk of a danger simple, obvious, known to him, and revealed by his own labors is not, in my judgment, reasonable. Therefore I dissent.