
    No.- 374
    WOOLFE v. OHIO OIL CO.
    Circuit Court of Appeals, Sixth Circuit
    No. 3730.
    Feb. 12, 1923
    This -opinion has not been published except in Abstjh
    MÁSTEÍK AÑD SERVANT — -Contributory né¡ gence is.question for jury when evidence conflict (2) Requirements for guarding machinery/ “shops and factories” held applicable to gas en¿ in pumping station — (3) Evidence held no to sh acceptance of Workman’s Compensation Actl
    Ejror to U. S. District Court, N. D. Ohio, W. D
    Attorneys — W. P. Barnum and E. H. Moore a ’’Metsger & ’ McCarthy, for Woolfe; Merle N. P and Alex-L. Smith for Oil Co. ••
   Epitomized Opinion

Knappen, Denison and Donahue, JJ.

DONAHUE, J.

Woolfe was employed by the Oil Co. to oper and care for a gas engine, one of his duties bed to oil -the engine. Woolfe was injured while atterfr ing to oil the engine and brought suit for damag The Oil Co. alleged that Woolfe was negligent not stopping the engine before attempting to oil that the Oil Co. had complied with the requiremé: of the Workman’s Compensation Act and that Woo had recovered partial damages under that act. 1 evidence indicated that he had been in the habit oiling the engine while it was in motion and t] it would have been dangerous for him to have star the engine if he had stopped it for any purpo Woolfe denied having accepted compensation uric the act mentioned above.

Held by Circuit Court of Appeals in reversing jii( ment for Oil Co.: i.

1. The question of whether or not Woolfe y negligent was in dispute, and should have been 3 to the jury.

2. The requirement of GC. 1027 as to sáfegua: ing machinery is held to include by its definiti of “shops and factories” a gas engine in a sm pumping station.

3. In servant’s action for injuries where defendí claimed plaintiff elected to accept compensati under the Workman’s compensation Act of Oh evidence held to show that he. received and retain checks from his employer not as compensation uni: the act but as a continued payment of his sala during disability.  