
    No. 599
    MASLEK v. PENNSYLVANIA R. R. CO.
    No. 7013.
    Decided March 29, 1926
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    751. MASTER AND SERVANT — 1. Where employe assumes ¡risk of employment, employer must nevertheless furnish the usual protective devices.
    2. Whether or not the use of a certain tool comes within the risk assumed is a matter for jury to determine.
    Attorneys — Edward Davidson for Maslek; Squire, Sanders and Dempsey for the R. R. Company; all of Cleveland.
   PER CURIAM.

Mike Maslek, an employe of the Pennsylvania Railroad Co. brought this action in Cuyahoga Common Pleas alleging injuries sustained as a result of being ordered to trim ties with an adz that was dull and caused chips to fly. No goggles were given him to protect his eyes, and a flying chip, striking one eye, severely injuring same.

The company alleged that Maslek assumed all risks of employment and asked for a directed verdict which was granted by the trial court. Maslek, prosecuted error. The Court of Appeals held:

1. While it is true that an employe assumes all risks incident to his employment in the use of simple tools, the employer is nevertheless guilty of negligence if the usual protective measures are not furnished by him.
2. It cannot be said as a matter of law that an adz is a simple tool.
3. The failure to furnish goggles may be held to be a breach of duty on part of the company.
4. It is a matter of fact for the jury to determine whether the tool used was such that from the use of which a risk of employment was assumed.

Judgment therefore reversed and cause remanded for new trial.  