James Clark McReynolds

“ They were first laid on the ground and then cut with a cold chisel. One man held the chisel while respondent and two others, acting in turn, struck it with a heavy hammer. None of them wore goggles; none asked for goggles or objected to the method of operation. The first rail had been severed; work had begun on the second. While respondent was standing by awaiting his turn to strike, a steel chip from the chisel or rail struck and destroyed his eye. On other occasions he had assisted in cutting steel rails when goggles were used and he knew chips would fly during such an operation. ”

“ Thereafter he sued the company for damages in the court of common pleas, Pike county, Ohio. He alleged that the accident resulted from its negligence in the following matters: Ordering him to use a defective sledge hammer and chisel; failing to promulgate and enforce proper rules concerning the upkeep of tools ordinarily used, to furnish guards or goggles for workmen's eyes, to provide a reasonably safe place for him to work. ”

“ In cases like this, where damages are claimed under the Federal Employers' Liability Act (45 USCA §§ 51-59) , defense of the assumption of the risk is permissible and where the undisputed evidence clearly shows such assumption the trial judge should direct a verdict for the defendant. ”