
    No. 508
    N. Y. CENT. RD. CO. v. MRKELA
    No. 19767.
    Supreme Court
    On motion to certify.
    Dock. Apr. 13, 1926.
    111. ASSUMPTION OF RISK — If an employee of a carrier, controlled by interstate commerce, is injured by an instrumentality which he thoroughly understands does the defense of Assumption of Risk bar him from recovery ?
    Attorneys — West, Lamb & Westenhaver for Co.; Edward Davidson for Mrkela; all of Cleveland.
   Joe Mrkela brought this action originally in Cuyahoga Common Pleas against The New York Central Railroad Company for damages resulting from personal injuries.

Mrkela for 15 years had been a track laborer. On the day of his injury he was helping replace old ties with new ones. The method used was to draw the spikes from five or six adjoining ties, place a jack under the rail, raise it a sufficient height to permit the worn ties to be dragged out by the use of tongs, insert the new ties, lower the rails, and tamp down the road-bed, and re-spike the rails to the new ties. Just before the accident, the spikes having been pulled from half a dozen ties, the rails were raised by means of a 15-ton jack. This is operated by a lever about six feet long. After the work had been commenced at this point, a passenger car was spotted on the adjoining track, and it was impossible to lower the jack by the use of the lever; and as an engine was approaching the point, it became necessary to take the jack out from under the rails to permit its passage.

The jack may be lowered by striking a certain post. As the train approached the foreman ordered Mrkela to “Knock out the jack”. As he did so the rail dropped and caught his foot.

The judgment of the Common Pleas for $7,-500 was affirmed by the Appeals without opinion.

The Company, in the Supreme Court, contends :

1. That there was no evidence to show any negligence on its part.

2. That the evidence established a complete defense under the doctrine of assumption of risk as it is applied under the Federal Employers’ Liability Act.  