
    MASTER AND SERVANT — ASSUMPTION OF RISK.
    [Cuyahoga (8th) Circuit Court,
    February 1, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Mary Johns, Admx., etc. v. Cleveland Cincinnati, Chicago & St. Louis Railway co.
    Assumption op Risk by Servant prom Employer’s Violation op Statute.
    A person in the employ of a railway company and knowing of its failure to block a guard-rail on a trestle in violation of Sec. 3365-18, Rev. Stat., prescribing the duty of railroads in such cases, assumes the risk thereof, and no recovery can be had for his death, by reason of getting his foot caught therein and being run over by a car. (The court inclines to the contra rule laid down in Valley Ry. Co. v. Keegan, 10 O. E. D. 398, but follows Krause v. Morgan, 53 Ohio St. 26, with the statement that “ however hard the doctrine may seem it appears to be the doctrine of the Supreme Court of Ohio.”)
    Heard on Error.
    John 0. Winship, for plaintiff in error.
    E. A. Foote, for defendant in error.
   MARVIN, J.

This is a proceeding in error. The case below was brought by the plaintiff in error to recover for the wrongful death of John Johns who was an employe of the railroad company and who on April 27, 1897, came to his death by being run over by a car of the railroad company. At the conclusion of the plaintiff’s evidence, motion was made to direct a verdict for the defendant, which was sustained, and judgment entered upon such verdict. It is sought here to reverse that judgment.

The railroad company, it is said, was prosecuting its business at the place where the accident occurred, in violation of the statute then in force, Sec. 3865-18, Bates’ Rev. Stat., which reads :

“ That every railroad corporation operating a railroad or part of a railroad in this state, shall on or before the first day of June, 1899, adjust, fill or block, all angles in frogs, switches and crossings on their roads, in all yards, divisional and terminal stations where trains are made up, with the best known sheet steel spring guard or wrought-iron appliances approved by the commissioner of railroads and telegraphs.”

And then provides a penalty for failing to comply with the provisions of the statute.

It is conceded that at the point where this accident occurred, there was a guard-rail and it was not blocked. It is said by the defendant in error, that it was on a bridge; as a matter of fact, it was on a trestle; but, without determining whether such trestle was a bridge or not, we are able to dispose of this case.

It is urged that if the railroad company was carrying on its business in violation of this statute and the injury resulted from the fact of the man Johns being caught between the guard-rail and the other rail, then, in no event, could the railroad company, the defendant, fail to be held responsible; for, it is said, the violation of the statute is such negligence that the employe can not be held to have assumed the risk of such violation even though he knew all about it.

In Valley Ry. Co. v. Keegan, 10 O. F. D. 298 (40 Bull. 167), Judge Taft of the federal circuit court delivers an elaborate opinion, holding that one violating a statute in the prosecution of its business, can not avail himself of his employe assuming the risk that comes from the violation of that statute. Judge Taft makes an argument which, to me, js very satisfactory, but is not so to our Supreme Court which holds directly opposite.

In Krause v. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886], the second clause of the syllabus reads :

“ One who voluntarily assumes a risk, thereby waives the provisions of a statute made for his protection. And where a statute does not otherwise provide, the rule requiring the plaintiff in an action for negligence, to be free from fault contributing to his injury, is the same, whether the action is brought under a statute or at common law.”

The opinion in this case, by Judge Spear, I will not stop to read. It sustains this proposition: That, although the railroad company is in violation of the statute, still one who is in the employ of the company, and knows all about such violation, must be held to have assumed the risk. However hard that doctrine may seem, it seems to be the doctrine of the Supreme Court of Ohio.

It is said, however, that if he did. assume this risk and his foot was caught, still the evidence was such that it should have been submitted to the jury as to whether the railroad company was negligent.

The examination of the evidence shows to us that there was no negligence on the part of the railroad company unless the negligence was in the not blocking at that point.

The judgment of the lower court is affirmed.  