
    The New York, Chicago & St. Louis Rd. Co. v. Biermacher.
    
      Negligence—Federal Employers’ Liability Act—Plaintiff assumes risks and dangers from fellow employe’s negligence, when—Question for jury—Plaintiff’s knowledge of dangers and assumption of risk.
    
    Master and Servant, 39 C. J. § 1365.
    (No. 19190
    Decided April 13, 1926.)
    Error to the Court of Appeals of Cuyahoga county.
    
      Messrs. Tolies, Hogsett, Ginn <& Morley, for plaintiff in error.
    
      Messrs. Anderson, Lamb & Marsteller and Mr. J. J. Tetlow, for defendant in error.
   By the Court.

One of the reasons for the reversal of the former judgment of the trial court and the Court of Appeals in this case (110 Ohio St., 173, 143 N. E., 570), was that the trial court, at the instance of plaintiff, Biermacher, instructed the jury to exclude all acts of negligence of fellow employes from the risks and dangers assumed by plaintiff, whereas only such risks and dangers due to negligent acts of fellow employes, incident to the employment, as were not fully known and appreciated by him, should have been excluded from the risks assumed.

In the present trial, after counsel for plaintiff, Biermacher, had stated to the jury that he expected to prove “that it was the duty of the man sitting here (indicating on photograph), with his feet down over the trough, to guard and protect from falling from the car any tools or pipes that might be here immediately under him,” and had stated, “Our case, to simplify it, is that piece of pipe fell from that car which caused the derailment of the car, because one of the employes of the railroad company failed to exercise ordinary care in reference to that piece of pipe. That is our only claim of negligence,” and had further stated, “Certain tools, pieces of pipe, and so on, were carried, and had been carried,, for many, many years, on motor cars, gasoline cars of this kind, without any accident ever having happened,” and the answer having admitted “that said derailment was caused by a certain pipe falling in front of the gasoline motor car,” the court, at the instance of the railroad company, defendant, instructed the jury upon such statement to return a verdict for the defendant; thus again losing sight of the distinction between negligent acts of fellow employes and negligent course of conduct of fellow employes creating risks and dangers incident to the employment, which the plaintiff knew of, fully appreciated, and therefore assumed, and negligent acts and course of conduct of fellow employes creating risks and dangers incident to the employment of which plaintiff did not know, which he did not fully appreciate, and therefore did not assume.

The statement of counsel that pieces of pipe had been carried on motor cars of this kind for many years, and many thousands of miles, without accident, together with the statement that it was the duty of a man sitting at a given position to guard and protect the pipe from falling, and that on this occasion the man negligently permitted it to fall, reasonably permits the inference that plaintiff did not know either of the danger of the pipe falling or the danger of the fellow employe, charged with the duty of keeping it from falling, negligently permitting it to fall.

Whether or not plaintiff knew of either danger, and, therefore, whether or not he assumed those risks, was a question of fact for the jury; hence it was error for the court to direct a verdict for the defendant company.

The error in respect to assumed risk in the former trial was the exclusion of negligent acts and conduct of fellow employes, of which plaintiff knew and fully appreciated, from the risks and dangers incident to the employment assumed.

The error in this trial is the inclusion of negligent acts and conduct of fellow employes, of which, according to the statement, plaintiff did not know, and which he did not fully appreciate, among the risks and dangers incident to the employment assumed.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Marshall, C. J., Jones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.

Marshall, C. J.,

concurring. I concur in the

affirmance of the judgment of the Court of Appeals and the grounds stated in the per curiam opinion. I am writing this separate memorandum because I ám of the opinion that upon the former review of this controversy, as reported in 110 Ohio St., 173, 143 N. E., 570, the members of this court concurring in the judgment then rendered, including the writer of this concurring opinion, erred in the declaration of the second paragraph of the syllabus as follows:

“2. The Supreme Court of the United States has decided that the doctrine res ipsa loquitur does not apply in the trial of cases between servant and master, arising under the federal Employers’ Liability Act.”

That declaration of law was based upon certain cases cited and quoted in the opinion at pages 179, 180, 181, and 182 (143 N. E., 570). The quotations are accurate, but do not support the conclusions reached. The case of Patton v. Texas & Pac. Ry. Co., 179 U. S., 658, 21 S. Ct., 275, 45 L. Ed., 361, and the case of Looney v. Metropolitan Rd. Co., 200 U. S., 480, 26 S. Ct., 303, 50 L. Ed., 564, were decided before the enactment of the federal Employers’ Liability Act, and therefore could not have been decided with any special reference ta that statute. In those cases a distinction is drawn between cases involving carrier and passenger on the one hand and employer and employe on the other, and the well-known, well-established doctrine is declared that no presumption of negligence arises against an employer from the mere fact of accident, but that negligence is an affirmative fact for the injured employe to establish against the employer before there can be a recovery. This principle is quite apart from the principles which govern the doctrine of res ipsa loquitur. That doctrine applies only under exceptional circumstances, and no definite rule has ever been declared whereby the limitations of the doctrine are clearly established. Nowhere in either the Patton or Looney cases is it declared that the doctrine res ipsa loquitur does not apply in the trial of cases between servant and master. At a later time, in Minneapolis & St. Louis Rd. Co. v. Gotschall, Admx., 244 U. S., 66, 37 S. Ct., 598, 61 L. Ed., 995, Chief Justice White had under consideration the application of the doctrine res ipsa loquitur to a case involving master and servant, and, in the course of his opinion, referred to the Patton and Looney cases, and agreed that the doctrine could not be applied to the facts of those cases, and then proceeded to state that the doctrine could apply in cases between master and servant only where the accident happened “under the most exceptional circumstances.” It seems to me that it must be conclusively inferred from that language that, if the circumstances are exceptional, the doctrine may be applied.

In a very large number of cases since the enactment of the federal Employers’ Liability Act, the courts of last resort of many of the states have applied the doctrine under exceptional circumstances in cases where employes have brought suit against the employer under the provisions of that act. The federal Courts of Appeals have also applied the doctrine in numerous cases; some decided since the decision of the Gotschall case, in which its principles have been followed. It is not a conclusive argument in favor of the applicability of the doctrine in cases between master and servant, but it is at least persuasive that, in the case of Central Ry. Co. of N. J. v. Peluso, Admx., 261 U. S., 613, 43 S. Ct., 359, 67 L. Ed., 827, the Supreme Court of the United States refused the writ of certiorari where the doctrine had been applied in the Court of Appeals below, and the application for the writ of certiorari was based solely upon the contention that the maxim would not apply in master and servant cases. The decision of the Court of Appeals in the Peluso case is reported in 286 F., 661. As showing that this question was involved in the Peluso case in the Court of Appeals, I am quoting the comment of Mayer, J., upon the Gotschall case:

“From the foregoing we think it is quite clear that the Supreme Court has left unimpaired the doctrine of res ipsa loquitur as between, employer and employe where the circumstances are such as to warrant the application of that doctrine in the sense of the definition in the Francey and other cases cited supra.”

For the foregoing reasons, and based upon the foregoing authorities, I am of the opinion that this court should at this, the earliest opportunity, correct what I conceive to be an erroneous declaration of law in the second paragraph of the Biermacher case, as reported in 110 Ohio St., 173, 143 N. E., 570.  