I feel constrained to dissent from the opinion of the majority court in this action, and I will briefly give the reasons why.
This cause came into this court once before. At that time, in the common pleas court, the plaintiff and defendant stated the cause of action, and after the statement of the cause of action the court directed a verdict for the defendant. Error was prosecuted to this court, and a decision was rendered, reversing the common pleas court, and remanding the same for a new trial. The writer of this dissenting opinion was very much of the opinion in the first instance that there was no liability for which the defendant, railroad company, could be held, but did not deem it necessary to dissent from the opinion, and so in a measure acquiesced. The case then went back to the common pleas court, whereupon the plaintiff changed his position, which materially affected the liability here, for, had he maintained the position he took in the first case, the probabilities are that this court would either have had to reverse itself or sustain a judgment in favor of the plaintiff, if one was rendered, but, as already stated, in the common pleas court, after the case had been remanded for a retrial, he changed his position and sought to hold the Pennsylvania Railroad Company under the United States law rather than the state law.
After the evidence was all introduced in the *Page 529 second hearing, a motion to direct a verdict having either been heard and refused by the court, or held in abeyance, the court came to the conclusion that there was no liability in the case and so directed a verdict in favor of the defendant company. Error is prosecuted to this court to reverse that judgment, and the majority of the court seem to think that the case should be reversed, in which conclusion I cannot join, for the evidence all shows that this plaintiff was as fully aware as the foreman was of the dangers attendant upon the use of the adze, and of the condition it was in. It must be remembered that this adze that was used is but a common tool, and there was nothing the matter with it except that it had become nicked and dull. When the plaintiff complained to the foreman, the latter said he had no other adze, and the plaintiff then continued to use it. He then asked for a pair of goggles, and the foreman said he had none there, but that there was a pair at another station. Plaintiff now seeks to say that they then ordered him to go forward with his work. In any event he went forward, and did his work, and was injured, as he claims, by chips flying in his eyes.
Now it must be remembered that the danger, if there was any danger, was called to the attention of the foreman by the plaintiff himself, and the plaintiff told the foreman of the dangers, and so he was as well and better acquainted with the impending danger than was the foreman himself, and with this in mind, and with full knowledge of the impending danger, he went on with his work, and under and by virtue of the authorities in law laid down where the service is performed on an interstate *Page 530 railroad company, under the United States law, there is a clear assumption of risk, and whatever injury ensued occurred to him who assumed the risk thereof. To sustain this contention that there can be no recovery in such cases, I wish to citePennsylvania Co. v. McCurdy, 66 Ohio St. 118, 63 N.E. 585;Boldt, Adm'x., v. Pennsylvania Rd. Co., 245 U.S. 441,38 S. Ct., 139, 62 L. Ed., 385; and Pryor v. Williams, 254 U.S. 43,41 S. Ct., 36, 65 L. Ed., 120.
In Boldt v. Pennsylvania Rd. Co., supra, we have a case almost exactly on all fours with the instant case, and there a Missouri court, construing the state common law, held that there might be a liability against the railroad company; that Boldt's conduct would amount to nothing more than contributory negligence in using the tool under the circumstances; that there would be a reduction perhaps of the judgment, but that he could recover. The Supreme Court of the United States, in reversing the case, held that it was a case in which the plaintiff plainly assumed the risk and that there was no such thing as peremptory order involved in the case.
So in the instant case I think without any question that the plaintiff assumed the risk and he cannot recover, and I think the judgment of the common pleas court was right and ought to have been affirmed. *Page 531