
    No. 614
    EMLINE v. PENN. R. CO. et al
    Ohio Appeals, Sixth District,. Lucas County
    No. 1338.
    Decided June 25, 1923
    Tl'is opinion has not been published except in Abstrae
    ASSUMPTION OF RISK — (1) Under the Feders Employers’ Liability Act the question of assumj tion of risk is usually a question for the jury-12) Direction of verdict.
    Attorneys — Clyde L. Deeds, for Emline.; Marsha¡ & Fraser and C. A. Seiders, for R. R.'Có.'
   CHITTENDEN, J.

Epitomized Opinion

This is an action for personal injuries brougl against the Pennsylvania Co. and the Woodvill Lime Products Company. The plaintiff was a brake man upon the Pennsylvania and was knocked o the! top of a box car by an overhead stone bin whi) switching the cars in the Lime Products Company yard. The evidence disclosed that the switch track were owned and maintained by the railroad, bi that this stone bin had been erected by the Lim Products Company. It also disclosed that plainti had had some experience with railroading and th; he knew that- the lime bin extended over the switc track and was used for the purpose of loading tl lime into hoppers. The plaintiff claimed, howeTO that he did not know that there was insuffici® clearance, but the evidence was in dispute as^ this fact. It was admitted by all the parties thaj .the Railroad Company was engaged in interstate commerce at the time the accident occurred. At th close of the plaintiff’s evidence both defendants mad motions for directed verdicts and they were grante< Thereupon the plaintiff prosecuted error. In revers ing the judgment of the lower court as to the R. I Company, the Court of Appeals held:

1. Under the Federal Employers’ Liability A( the risk resulting from the location of a structui in dangerous proximity to a railroad track is usualll a question to be determined by the jury and it i also for the jury to determine from all the evidenc whether the injured employe had actual knowledg of the danger. Therefore, the court erred in holdin as a matter of law that the brakeman in this cas had knowledge of the dangerous condition whic existed.

2. It is error for the court to direct a verdic against the plaintiff where, by giving to the evidenc the most favorable interpretation toward him whic any of the evidence will reasonably warrant, there i some, evidence tending to support the allegation c the petition.  