Detroit & T. S. L. Rd. v. Taloff , 1 Ohio Law. Abs. 183 ( 1923 )

RICHARDS, J.

Epitomized Opionion

Taloflf and another employe of the railroad company, B., were cutting nuts from bolts in order to remove them from T rails on its tracks. A piece of a nut is claimed to have been driven violently from the nut, and striking T. violently in the mouth, resulting in the injury complained of. The negligence claimed is that because of anger of B towards a superior employe of the company, he struck 'unusually hard blows in wielding the maul upon the chisel, causing the piece to fly off, when he should have gauged the blows, and struck the chisel with proper care. The company claimed T. assumed the risk.’ T. obtained a verdict and judgment for $400.

Held:

1.That while an employe does not assume a risk attributable to his employer’s negligence, until he becomes aware of it, unless it is so plainly observable that he must be presumed to have knowledge of it, the matter of the assumption of risk is a question of fact for the jury under proper instructions from the court, and that a finding by the jury, if it did so find, that T. did not assume the risk, was clearly against the manifest weight of the evidence. Judgment reversed.