Noftz v. Baltimore & O. Ry. Co. ( 1926 )

DONAHUE, Circuit Judge

(after stating the facts as above). Section 9017 of the General Code of Ohio has no application to the facts of this case. This plaintiff and his fellow workmen were employed by the defendant for the sole purpose of repairing defective cars. If a railroad company is required to furnish repairmen cars that are not defective, upon which to perform the duties of their employment, then defective ears can never be repaired. The statute requires a railroad company to keep its cars and other implements, machinery, and appliances free from defects and safe for use in the operation of its road. The employment of repairmen on defective ears for the purpose of repairing defects is not in violation but in strict compliance with the provisions of this statute. B. & O. R. R. Co. v. Hooven (C. C. A.) 297 F. 919-922.

Section 6243 of the General Code of Ohio applies to defects and unsafe conditions in permanent fixtures, ways, machinery, appliances, or tools, where and with which employes are required to work, and not to the specific thing upon which workmen are temporarily engaged in making repairs. This section does not specifically include ears, but, even if “cars” were to be read into the statute by intendment, it could not, for the reason heretofore stated, apply to cars defective in the parts upon which workmen are engaged in making repairs. Such a construction would lead to the ridiculous conclusion that it was the intent and purpose of the General Assembly of Ohio to require a railroad company to repair defective ears, and by the same statute prevent it from /employing any one to make repairs on cars that are defective.

It further appears that the defeet in this timber was of such a character and so hidden from view before the removal of the siding, incident to making these repairs, that it could not have been discovered by reasonable and proper care, tests, or inspection. For this reason, the court did not err in directing a verdict for defendant, even if the facts of this ease were such as to bring it within the provisions of either section 9017 or section 6243 of the General Code of Ohio.

Affirmed.