
    No. 56
    DET., TOL. & IRON. R. R. CO. v. ZUBER
    No. 19533.
    Supreme Court
    On motion to certify.
    Dock. Jan. 5, 1926;
    4 Abs. 40.
    458. EMPLOYERS’ LIABILITY — Is the defense of assumption of risk available to a railroad company engaging in both interstate and intrastate commerce in a suit by an employee for personal injury?
    Attorneys — J. P. Leasure for Company; A. A. Slaybaugh.for Zuber; both of Ottawa.
   The Detroit, Toledo, & Ironton Railroad Company engages in both interstate and intrastate commerce. Philip Zuber, was employed as a section hand by the Company and was injured by a sliver flying from a chisel which was cracked, split, defective and unfit for the use to which it was put at the time of the injury, near Leipsic, Ohio. The testimony disclosed that Zuber knew of the defective condition of the chisel at and before the time of injury and that the injury was not premanent and that Zuber returned to work a few days after the injury.

A demurrer to the petition was overruled and a jury in the Putnam Common Pleas awarded a verdict for Zuber. The Court' of Appeals affirmed the judgment of the Common Pleas.

The Company in the Supreme Court presents the following questions for the consideration of the Court:

1. Are the rights and liabilities of plaintiff in error governed by the Federal Employers’ Liability Act?

2. Is the doctrine of assumption of risk available to the plaintiff in error in this case ?

3. Does the knowledge on the part of the defendant in error of the alleged condition of the chisel at and before he received the injury, bar his right to recover ?

4. Does the admission of the defendant in error that he knew at and before the time he was injured, that the chisel was in the condition described in his petition, and that its use in that condition was dangerous, bar his right to recover?

5. Was the injury complained of by defendant in error incidental to the business and for that reason was the risk of using the same assumed by the defendant in error?

6. Considering that the evidence shows that the injury was not permanent and the defendant in error resumed work within a few days after he .was injured, was not the verdict of the jury excessive?  