
    AKRON CANTON & YOUNGSTOWN RY CO v WHITTAKER
    Ohio Appeals, 9th Dist, Summit Co
    No 1631.
    Decided April 30, 1929
    Waters, Andress, Hagelbarger, Wise & Maxon, Akron, for Ry Co.
    Doolittle, Foust & Holden, Akron, for Whittaker.
   WASHBURN, J.

A master owes a duty to his servants in reference to defects in the instrumentalities with which, and the place in which, the servants work, and that duty is not limited to such defects as the master knows about or such as have existed for such a time as that the master would likely know about, but includes such defects as the master, by the exercise of reasonable care, would know about. The master does not perform his full duty to his servents unless he exercises ordinary care and diligence in discovering defects, and it is the province of the jury to determine, in the first instance, whether, in a given case, the master, by the exercise of ordinary care and diligence, should have discovered a given defect.

In this case the railway company was charged with notice of the defective condition of its track if it had existed “for such a length of time that it' would have observed its condition if it had exercised ordinary prudence on its part,” as the court charged in the general charge, rather than if it had existed for such a time that the railway company “would likely have known of such condition,” regardless of whether it made any inspection or exercised ordinary c,are in ascertaining the condition of its track, as the court was asked to charge in said request.

We hold that the refusal to give said request before argument w,as not error.

Funk, PJ, and Pardee, J, concur.  