
    No. 561
    N. Y. C. & St. L. R. CO. v. BIERMACHER
    Ohio Appeals, Eighth District, Cuyahoga County
    No. 4298.
    Decided June 25, 1923
    FEDERAL EMPLOYERS’ LIABILITY ACT — (1) Application of res ipsa loquitur under this act— (2) Burden of proof under this act — (3) Assumption of risk — PRACTICE (k) Failure of court to send deposition to jury room — (5) To constitute error the alleged error must be clearly prejudicial.
    Attorneys — Tolles, Hogsett, Ginn & Morley, for Railroad Company; Anderson, Lamb & Osborn, for Biermacher.
   LEVINE, J.

Epitomized Opinion

Biermacher brought an action against the R. R. Company for personal injuries. The plaintiff was injured while engaged as a bridge carpenter and riding on a gas motor car, owned, operated and controlled by the R. R. Company between Cleveland and Mentor, Ohio: While the plaintiff was riding on this car it was derailed. The defendant in its answer admitted that the derailment was caused by a certain pipe falling in front of the motor car. The only evidence of negliegence introduced was the fact that the car left the track. The court Refused to direct a verdict for the defendant as Requested and the trial resulted in a verdict in favor of plaintiff. Whereupon the defendant R. R. Co. prosecuted error, claiming among other things that the doctrine of rees ipsa loquitur did not apply and that the court had committed certain errors in its eharge. In sustaining its judgment, the Court of Appeals held:

1. Under the Federal Employers’ Liability Act, the doctrine of res ipsa loquitur is applicable only if the accident is such as does not ordinarily happen when those who have the management or control of the instrumentality exercise ordinary care.

2. Even though the doctrine of res ipsa loquitur applies, this does not in any way change the burden of proof that at all times remained in the plaintiff.

3. Under the Federal Employers’, Liability Act an employe assumes only the risks ordinarily incidental to his employment and does not assume the risks growing out of the negligence of the R. R. Co. or its employes.

4. Where a deposition contains incompetent evidence, or evidence which is not read during the trial, the deposition need not be sent to the jury.

5. To constitute reversible error for failure to follow a rule of practice, such failure must appear to have operated to the prejudice of the substantial rights of the party requesting a compliance therewith, and as the R. R. Company’s rights were not prejudiced in this case, no prejudicial error was committe.  