DocketNumber： No. 4019
Filed Date： 6/9/1924
Status： Precedential
Modified Date： 10/18/2024
Epitomized Opinion
Published Only in Ohio Law Abstract
Whitaker brought an action to recover damages from the Hocking Valley R. R. Co. for personal injuries sustained by him while in its employ. At the time of the accident plaintiff and defendant were both engaged in interstate commerce. Whitaker’s duties consisted in transferring freight to and from cars at Marion, Ohio. At the immediate time of the injury he was unloading vaults from a box car when one of the vaults fell on his arm, seriously injuring him.
The plaintiff averred that the Railroad Company was negligent in that a fellow-servant failed to assist in preventing the vault from falling from the truck; in that the Railroad Company failed to equip the truck with materials to prevent the vault from slipping off the truck; in that the fellow-servant failed to warn plaintiff and in that the fellow-servant failed to place the truck in a proper position. The answer denied negligence and averred contributory negligence and assupmtion of risks on the part of plaintiff. In reversing the judgment of the lower court, the Court of Appeals held:
1. Under the Federal Employers’ Liability Act (Comp. St. Par. 8657-8665) an employe assumes the risk of an accidental injury, incident to the employment, not caused by the negligence of an employer or of a fellow-servant.
2. As there was no evidence of any negligence on the part of a fellow-servant, a motion for a directed verdict should have been sustained.