
    No. 215
    LUTHY, Admr., v. CINCINNATI, N. Y. & TEX. P .RY. CO.
    Superior Court of Cincinnati
    No. 58887.
    Decided Feb. 8, 1924
    1283. WORKMAN’S COMPENSATION — An injured employe of construction company may sue railroad even though he accepts compensation from his employer — The amount of the award granted by the Commission cannot be pleaded in mitigation of damages for wrongful death of employe.
    Attorneys — Thomas D. Slattery and Lewis F. Brown, for Luthy; Harmon, Colston, Goldsmith & Hoadley, for Railroad Company.
   MARX. J.

Epitomized Opinion

Published Only In Ohio Law Abstract

Swybold was employed by the Foundation h^Co., which company, under an independent ■^contract, was engaged in constructing a bridge for the defendant railroad. He was killed by this railroad’s negligence in running one of its cars against a platform upon which he was working. Deceased was employed and paid by the Foundation Co., which, was a contributor to the State Insurance Fund, i. e., it had elected to comply with the State Compensation Act. The railroad, however, had not complied with the act and had not elected to comply with the act, but on the contrary adjusted its own claims. A demurrer was filed to the answer, which raised two question: First, whether an acceptance of an award from the Industrial Commission under the Workmen’s Compensation Act by an injured employe bars such employe from bringing an action for the same personal injury against a third person; and, second, whether the amount of such award may be pleaded to reduce or extinguish the damage alleged to have been caused by the negligence of such third person. In sustaining the demurrer to the petition the Court held.

1. Acceptance of an award by the personal representatives of a deceased employe, does not bar a right of action for his 'wrongful death alleged to have been caused by the neglect of a third person.

2. The amount of an award accepted by the personal representatives of a deceased employe under the Workman’s Compensation Act, cannot be pleaded in mlitigation of damages for the wrongful death of such employe in an action against a negligent third person.  