The opinion
MR. JUSTICE CASTLES
(dissenting):
I dissent. The plaintiff’s own version is that, “I was a constant complainer about it.” That she tripped over the carpet, “Day after day, sometimes three or four times a day.” Plaintiff’s own evidence is that (1) she knew, (2) she appreciated the danger, (3) she voluntarily continued and (4) her present back difficulties are alleged to be the result of the very condition she knew and appreciated.
One of the elements argued by appellant is whether plaintiff appreciated the danger. Appreciation of the danger of course requires a subjective rather than an objective approach, and plaintiff’s testimony fully demonstrates her subjective understanding of the risks and hazards of the torn seam. Plaintiff' had had back trouble and pain before she came to work. She had had a hysterectomy in 1964 about two months after going to work and has had trouble since. She admits that when she left her employment “I was sick all over, I thought I had a kidney infection, it was making me sick all over.” She also’ said, “I had back and leg pain, I was a complete nervous, wreck, I couldn’t sleep at night.”
Plaintiff did not tell anyone she was leaving. She took a “leave of absence” and went home and stayed with her parents. Prior to her alleged fall, she consulted various doctors about the pain in her back. Apparently she had been to various chiropractors prior to the alleged fall. This, mind yo.u, is her own testimony. Then, she wrote a letter resigning.
*486 Under the facts here, the district court was correct, plaintiff did assume the risk of her alleged injuries as a matter of law. Additionally, she was contributorily negligent by her own statements. The majority opinion sets aside the summary judgment so the serious factual and medical questions as to causation of the alleged injuries will be gone into. I believe the majority is in error and thus I dissent.