Dayton & Union Railway Co. v. Bunger

3 Ohio App. 209, 25 Ohio C.C. Dec. 655, 19 Ohio C.C. (n.s.) 531, 19 Ohio C.A. 531, 1914 Ohio App. LEXIS 171

• Court: Ohio Court of Appeals
• Decided: June 1, 1914
• Status: Published

Opinion

Ferneding, J.;

Allread and Kunkle, JJ., concurring.

This action was brought under the federal employers’ liability act of 1908. The federal safety-appliance act contemplated by section 4 of the federal employers’ liability act had not become effective at the time of the injury complained of. The trial court adopted the view that the common-law defense of assumption of risk was abolished by section 1 of the federal employers’ liability act. Accordingly the demurrer was sustained to the third defense, embodying such defense, and such defense was not allowed to be considered in favor of the railway company during the conduct of the trial.

If we were called upon originally to construe section 1 of the federal employers’ liability act we would strongly be inclined to hold the same view; but since the case has come into this court the supreme court of the United States, which is the highest authority upon the federal question involved here, has authoritatively decided that the common-law doctrine of assumption of risk remains in force except as provided in section 4 of the federal employers’ liability act. Upon the authority therefore of Seaboard Air Line Ry. v. Horton, 233 U. S., 492, decided April 27, 1914, by the supreme court of the United States, we hold that the trial court erred in sustaining said demurrer to the third defense.

Mr. M. R. Waite; Messrs. Nevin & Kalbfus and Messrs. Fisher & Crisler, for plaintiff in error. Messrs. Matthews & Matthews and Messrs. Reisinger & Reisinger, for defendant in error.

We are also of the opinion that the trial court erred in its refusal to give charges Nos. 14 and 18, requested to be given to the jury before argument by the defendant, to which refusal proper exceptions were noted.

The judgment of the common pleas court is therefore reversed, and the cause is remanded to that court with instructions to overrule the demurrer to the third defense of the answer and for further proceedings.

Judgment reversed, and cause remanded.