
    MASLEK v. PENN RD. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Winch, Lurie, Addams & Burke, Cleveland, for Maslek.
    Squire, Sanders & Dempsey, Cleveland, for Penn. Rd. Co.
    458. EMPLOYER’S LIABILITY — 111 Assumption — of Risk — 396 Directed Verdicts.
    1. Peremptory order commanding use of appliance, though not accompanied by promise to be responsible for injury, held to make question of waiver of assumption of risk, one for jury.
    2. In action by railroad section employee, peremptorily ordered to use adze in cutting ties, for injuries received in using adze, error to direct verdict for defandant, on ground that employee knew risks arising therefrom.
   LEVINE, J.

4 4 1.Under federal Employers’ Liability Act. (U. S. Comp. St. 8657, 8665), where employee continues to work with appliance knowing dangers incident to its use under peremptory order given by employer, employer is estopped from asserting defense of assumption of risk and is said to have waived defense.

2. Under federal Employers’ Liability Act (U. S. Comp. St. 8657, 8665), peremptory order by employer commanding use of an appliance, though not accompanied by promise' of employer to be responsible for injuries held to present circumstance from which waiver of defense of asumption of risk could be inferred, so as to make question for jury.

3. In action under federal Employers’ Liability Act (U. S. Comp. St. 8657, 8665), by employee on section gang of railroad, peremptorily ordered to use adze in cutting ties, for injuries received to eyes in using adze, direction of verdict for defendant on ground that employee admitted he knew risks arising from use of adze, and therefore asumed risk, held error; cpiestion being for jury.

(Sullivan PJ., concurs. Vickery, J., dissents.)

For reference to full opinion, see Omnibus Index, last page, this issue.  