
    No. 95
    D. T. & I. R. R. CO. v. ZUBER
    Ohio Appeals, 3rd Dist., Putnam Co.
    No. 166.
    Decided Dec. 5, 1925
    111. ASSUMPTION OF RISK — Doctrine does not apply where employee is removed from the scene of operation; although he had knowledge of defective material being used.
    Attorneys — J. P. Leasure, Ottawa, for Zuber; A. O. Slaybaugh, Leipsic, for Company.
   WARDEN, J.

Phillip Zuber was an employee of the Detroit, Toledo & Ironton Rd. Co. and while engaged in this employment was injured by a chisel chip, which was caused by the striking of said chisel by a fellow worker. Zuber at the time was engaged in repairing tracks, but had no part in any operation with the chisel; and was some ten feet from the place where it was being used. The Company was engaged in intra and interstate commerce.

It was claimed by the Company that Zuber knew of the defective condition of the chisel; and that the verdict returned in the court below stated that Zuber had such knowledge. The verdict returned and judgment entered thereon was in favor of Zuber, however. The Court of Appeals held:

1. The trial court correctly held that the employee’s repairing the track came under the provisions of the Federal Employer’s Liability Act.
2. “Master must use ordinary care to furnish the servant a reasonably safe place in which to work.”
3. “Servant assumes the risks attributable to a failure of the master to use such care to furnish such place when it appears that the servant knew or was presumed to have known of the unsafe place; and that it endangered his safety, or else such danger was so obvious that an ordinarally prudent person under the same circumstances would have observed and appreciated it.” Pa. Rd. Co. v. McDonald, 105 OS. 280.
4. Applying this rule to the instant case, it cannot be said as a matter of law that Zuber knew that he was in a dangerous place, being eight or ten feet from where the chisel was used.
5. The doctrine of “assumption of risk” therefore does not apply in the case above-

judgment affirmed.  