
    The New York, Chicago & St. Louis Rd. Co. v. Biermacher.
    
      (Decided January 31, 1928.)
    
      Messrs. Tolies, Hogsett & Ginn and Mr. W. T. Kinder, for plaintiff in error.
    
      Messrs. Anderson & Lamb and Mr. J. J. Tetlow, for defendant in error.
   Kunkle, J.

This is an action in which defendant in error, Christian Biermacher, sought to recover damages for personal injuries claimed to have been sustained while in the employment of plaintiff in error.

The case presents several interesting questions which have been ably presented by counsel, both in their oral arguments and in their briefs.

The case has an unusual history. Upon the first trial, 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, 110 Ohio St., 173, 143 N. E., 570, 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 tbe Supreme Court, 114 Ohio St., 554, 151 N.E., 665.

The case 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 Aras an employee, as a carpenter, of plaintiff in error; that he with three other employees 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 employees loaded the gasoline car 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 10 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 car 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 defendant in error to keep a lookout 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.

A complete picture of the enterprise in which defendant in error and those associated with him were engaged; of the duties of the respective parties, and of the accident in question, may be found in the record in the testimony of defendant in error. Counsel are thoroughly familiar with this testimony, and we shall not undertake to quote same.

The grounds of negligence alleged in the petition of plaintiff below are as follows:

First. In causing and permitting certain pipe to be carried upon said “gasoline motorcar,” which pipe were not properly secured, and part of which pipe fell from the front end of said “gasoline motorcar,” causing said derailment.

Second. In operating said “gasoline motorcar” at the high rate of speed of about 30 miles per hour, considering the manner in which it was loaded, thereby assisting in causing said derailment. (This ground was taken from the consideration of the jury by the court.)

Third. In causing said “gasoline motorcar” to be derailed, as aforesaid.

It is admitted that this action is controlled by the Federal Employers’ Liability Act of 1908, and the amendments thereto (Title 45, Sections 51 to 59, U. S. Code; Comp. Stats., Sections 8657 to 8665), as both plaintiff in error and defendant in error were engaged in interstate commerce at the time of the accident, and that this case is controlled by the decisions of the United States Supreme Court.

There seems to be no dispute of the fact 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 the front end thereof.

It is clear to us from a consideration of the record that each of the employees upon the gasoline car in question was an agent of the plaintiff in error, for the purpose of performing certain duties. These duties in the case of those employees 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 pipe 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 had occurred. We think the rule in reference to assumption of risk is well stated by the United States Supreme Court in the case of Gila Valley, Globe & Northern Ry. Co. v. Hall, 232 U. S., 94, 34 S. Ct., 229, 58 L. Ed., 521:

“In-order to charge an employee with the assumption of a risk attributable to a defect due to the employer’s negligence it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent 'person under the circumstances would have appreciated it.”

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.

We have considered the record, and find no error therein which we consider prejudicial to plaintiff in error, either in the charge of the court, or in the refusal of the court to charge, as requested by counsel for plaintiff in error. We have considered all of the errors urged by counsel for plaintiff in error in their brief, including the claimed misconduct of counsel for defendant in error in argument to the jury, but find no error therein which, in our opinion, is prejudicial to plaintiff in error.

The judgment of the lower court will therefore be affirmed.

Judgment affirmed.

Ferneding and Allread, JJ., concur.

Judges of the Second Appellate District, sitting in place of Judges Sullivan, Vickery and Levine of the Eighth Appellate District.  