
    N. Y. C. & ST. L. RD. CO. v. BIERMACHER.
    Ohio Appeals 8th Dist., Cuyahoga Co.
    No. 7848.
    Decided Feb. 1, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    Femeding, Kunkle and Allread, JJ., of the 2nd Dist., sitting.
    111. ASSUMPTION — Of Risk — 829. Negligence — 158. Employer’s Liability.
    Employe not chargeable with assumption of risk rising out of defect in appliance, attributable to his employer’s negligence, unless he not only knew, or should have known, of defect, but also knew, or should have known, that it endangered his safety.
    Error to Common Pleas.
    Judgment affirmed.
    Tolies, Hogsett ,& Ginn and W. T. Kinder, Cleveland, for Railroad Co.
    Anderson & Lamb, and J. J. Tetlow, Cleveland, for Biermacher.
    STATEMENT OF FACTS.
    This is an action in which defendant in error sought to. recover damages for personal injuries claimed to have been sustained while in the employment of plaintiff in error.
    The case has an unusal history. Upon the first, trial, the defendant in error secured a verdict and judgment in his favor, which was affirmed by the Court of Appeals, but was reversed by the Supreme Court in the 110 Ohio State Reports, pg. 173, upon the grounds therein stated.
    Upon the second trial, the plaintiff in error secured a verdict and judgment in its favor, which judgment was reversed by the Court of Appeals, and the judgment of the Court of Appeals was affirmed by the Supreme Court in the 114 Ohio State Reports, page 554.
    The ease was thereupon tried the third time, with the result that defendant in error secured a verdict in his favor in the sum of $12,000. Motion for a new trial having been overruled, and judgment entered upon the verdict, error is prosecuted to this court. This is the judgment which is now under review.
    In brief, it appears from the record that on May 25, 1920, defendant in error was an employe, as a carpenter, of plaintiff in error: that he, with three other employes and a foreman, constituted a crew which reported for work at the shop of plaintiff in error in Cleveland and, after loading a gasoline car with different kinds of material, started for Mentor, Ohio, for the purpose of rebuilding or replacing a depot which had burned down. They intended to move a shed across the track .to serve temporarily as a station. These employes loaded the gasoline ear with tools, such as bars, jacks, wrenches, ropes, rollers, etc. The rollers were pieces of iron pipe from 18 to 24 inches in length. The gasoline car was operated by a foreman. After it had proceeded some ten miles on its journey the car was derailed by reason of one or more of these rollers falling from the front end of the car. The. defendant in error was injured by such derailment.
    On each side of the gasoline car there was a trough in which the tools and articles above described were placed by the different members of the crew and over which the different members of the crew sat. It further appears from the record that it was the duty of the men sitting in this position to take charge of the said tools under them and see that they did not fall from the car. It also appears that the defendant in error was sitting at the rear of the gasoline ear at a place where there were no rollers in the trough. There were some ropes there which it was his duty to keep from falling off the car. It was also the duty of the defendant in error to keep a look-out to the rear for approaching trains, as there was a train about due.
    These tools were carried, on the day of the accident, in the same manner and the same place as they had always been carried.
   KUNKLE, J.

“It is admitted that this action is controlled by the Federal Employers Liability Act of 1908, and the amendments thereto, as both plaintiff in error and defendant in error were engaged in interstate commerce at the time of the accident, and that this case would be controlled by the decisions of the United States Supreme Court.

There seems to be no dispute but that .the gasoline car upon which defendant in error was riding, and over which he had no control, was derailed and that such derailment was caused by a roller or pipe falling from such gasoline car in front thereof.

It is clair to us, from a consideration of the record, that each of the employes, upon the gasoline car in question, were the agents of the plaintiff in error for the purpose of performing certain duties. These duties, in the case of those employes sitting upon the different sides of the car, were limited to the care of the materials placed under their respective feet, and, in addition thereto, it was the duty of the defendant in error to watch the track to the rear for an approaching train then about due. . ■

Defendant in error was not required to notice or observe the condition of the material under the feet or in the charge of the other members of the crew. In this situation, the defendant in error would not be responsible for the condition of the pipes or rollers on the front end of the car, nor would he be charged with the acts of a member of the crew, located on the front end of the car, who had charge of the pipes or rollers which fell off in front of the car and caused the derailment and the injury to defendant in error. The defendant in error was in no way responsible for the negligence or the acts of the other members of the crew.

The next question relates to the assumption of the risk. This is a question ordinarily for the jury, where there is a conflict of evidence or where the evidence is of doubtful inference.

The facts and circumstances disclosed by the record, we think, would warrant the conclusion that defendant in error had no knowledge of the manner in which the member of the crew was handling the pipes or rollers which fell on the track and caused the derailment. Without such knowledge, the defendant in error would not be held to have assumed the risk. This conclusion is strengthened by the fact that, during a large number of years of similar service, no such accident occurred. We think the rule in reference to assumption of risk is well stated by the United States Supreme Court in the case of Railroad Co. v. John Hall, 282 U. S. Reports, page 93, as follows:

“An employe is not chargeable with the assumption of a risk arising out of a defect in an appliance attributable to his employer’s negligence unless he not only knew (or is presumed from its obviousness to have known) of the defect, but also knew (or else the danger must have been-so obvious that ordinarily prudent persons under the circumstances would have appreciated it) that it endangered his safety.”

Applying the principle announced in this case, we are of opinion that the defendant, in error could not be charged with the assumption of the risk.

The judgment of the lower court will therefore be affirmed.”

(Ferneding and Allread, JJ., concur.)  