
    No. 685
    N. Y. C. & ST. L. RY. C. v. NUCIFER
    Ohio Appeals. 6th District Huron Co.
    No. 204.
    Decided April 22, 1926.
    225. CHARGE OF COURT — 1. It is reversible error for court to refuse charge by special request, when such vequest states correct application of law.
    2. When the case comes within the Federal Employer’s Liability Act and law applicable thereto has been construed by United States Supreme Sourt, state court must follow such construction.
    Attorneys — R. R. Parkhurst, Bellevue, for Railway Co.; Young & Young, Norwalk, for Nucifer.
   YOUNG, J.

Sam Nucifer while employed by the New York, Chicago and St. Louis Railway Co. was injured by being struck by an engine of the said company. He brought this action in Huron Common Pleas to recover damages for said injury.

This case growing out of interstate commerce comes within the Federal Employer’s Liability Act and the question arises as to what extent if any he assumed the risk of the employment.

The company made request to have the court charge on this point as follows:

“Under the facts in this case the employe, Sam Nucifer, must be held to have assumed both the ordinary and the extraordinary risks and dangers incident to his employment and the risks of negligence of his employer and fellow employes, if the same were obvious and fully known and appreciated by him.”

This charge being refused by the court the company prosecuted error. The Court of Appeals held:

1. When an action is brought in a state court under the Federal Employer’s Liability Act, said court is governed by the interpetations of the United States Supreme Court.
2. The United States Supreme Court has held that when the risks due to negligence of the employer and fellow employes are obvious and fully known and appreciated, they are assumed by the employe.
3. Nucifer, having been employed by the company for a number of years, was fully cognizant of these facts.
4. Inasmuch as the charge requested was a correct statement of the law applicable to this case, failure to give such charge is reversible error.

Judgment reversed and case remanded for new trial.  