N.Y., C. St. L. Rd. Co. v. Biermacher

*343 KUNKLE, J. “It is admitted that this action is controlled by the Federal Employers Liability Act of 1908, and the amendments thereto, as both plaintiff in error and defendant in error were engaged in interstate commerce at the time of the accident, and that this case would be controlled by the decisions of the United States Supreme Court. There seems to be no dispute but that .the gasoline car upon which defendant in error was riding, and over which he had no control, was derailed and that such derailment was caused by a roller or pipe falling from such gasoline car in front thereof. It is clair to us, from a consideration of the record, that each of the employes, upon the gasoline car in question, were the agents of the plaintiff in error for the purpose of performing certain duties. These duties, in the case of those employes sitting upon the different sides of the car, were limited to the care of the materials placed under their respective feet, and, in addition thereto, it was the duty of the defendant in error to watch the track to the rear for an approaching train then about due. . ■ Defendant in error was not required to notice or observe the condition of the material under the feet or in the charge of the other members of the crew. In this situation, the defendant in error would not be responsible for the condition of the pipes or rollers on the front end of the car, nor would he be charged with the acts of a member of the crew, located on the front end of the car, who had charge of the pipes or rollers which fell off in front of the car and caused the derailment and the injury to defendant in error. The defendant in error was in no way responsible for the negligence or the acts of the other members of the crew. The next question relates to the assumption of the risk. This is a question ordinarily for the jury, where there is a conflict of evidence or where the evidence is of doubtful inference. The facts and circumstances disclosed by the record, we think, would warrant the conclusion that defendant in error had no knowledge of the manner in which the member of the crew was handling the pipes or rollers which fell on the track and caused the derailment. Without such knowledge, the defendant in error would not be held to have assumed the risk. This conclusion is strengthened by the fact that, during a large number of years of similar service, no such accident occurred. We think the rule in reference to assumption of risk is well stated by the United States Supreme Court in the case of Railroad Co. v. John Hall, 282 U. S. Reports, page 93, as follows: “An employe is not chargeable with the assumption of a risk arising out of a defect in an appliance attributable to his employer’s negligence unless he not only knew (or is presumed from its obviousness to have known) of the defect, but also knew (or else the danger must have been-so obvious that ordinarily prudent persons under the circumstances would have appreciated it) that it endangered his safety.” Applying the principle announced in this case, we are of opinion that the defendant, in error could not be charged with the assumption of the risk. The judgment of the lower court will therefore be affirmed.” (Ferneding and Allread, JJ., concur.)