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ance almost essential for the safety of brakemen in the shifting of such cars from cae track to another, and thus dispense with the danger of making a flying switch, and that other companies and this one were accustomed to be supplied with and use them, it would seem that independent of the statute it would be negligence and want of care not to have one on a freight train for this purpose if such work has to be done. But we think it also comes within the spirit at least of this statute, as much as if there had been one, and it was defective, and by reason of defect the brakeman had been injured. In such case if the brakeman had been injured the company would be liable. And so here, if the absence of a necessary appliance was proximately the cause of the injury to the plaintiff, it should also be liable unless he had by his own negligence contributed to the injury."

Other cases, Columbus, H. V. & T. Ry. v. Erick, 51 Ohio St., 146 [37 N. E. Rep., 128]. and Pennsylvania Co. v. McCann, 54 Ohio St., 10 [42 N. E. Rep., 768; 31 L. R. A., 651], are cases of defective appliances, not like this, and yet with respect to which we think the same technical objection might have been made. In one case the brake worked somewhat too loosely; it either had become worn too smooth or had had too much lubricant; it worked too smoothly and resulted in the one operating it being injured; that was held to be a defect; and we think that anything that is allowed to happen to machinery whereby it becomes out of repair and will not operate as it is designed to operate and should operate, should be regarded, within the purview of this statute, as a defect. Of course, the presumed negligence of the company is re, uttable. It is so held by the Supreme Court, and the fact that the train starts out in good order and the brakes are in good order and they suddenly become gummed by reason of the ordinary operation of the train without any fault upon the part of any one, if such should be the case, would be facts to submit to a jury on the question whether the railroad company was in fact negligent in the particular instance; but we think that the case should not be so submitted to a jury as to result in the shifting of the burden of proof upon the question of the existence of the defect. We believe that the true rule with respect to all machinery, is that it should be as perfect as machinery that is in ordinary use, and as perfect as it could be maintained by the exercise of ordinary care.

We think that notwithstanding the defect may have arisen from a gumming up of the brake, the railroad company is presumed to have been negligent in using it; they are presumed to have had knowledge of its condition and the burden is upon the company to remove that presumption.

Now, we think these are the two principal questions involved in this case and that it is hardly worth while to take the time to discuss other questions presented. We are of the opinion that the court in its charge should not have implied that the deceased was not in the line of his duty when sitting upon the car; we think that in view of the condition of the pleadings and the evidence and all the circumstances, that should have been omitted from the charge, and yet we are not prepared to say that we would reverse the case on that account. It is said that the court's particular attention was called to it, but we do not discover from the record that that is so, and we assume that it arose from an oversight upon the part of the court as to the real provisions of the rule upon that subject.

Charge No. 12 at page 45 reads as follows: "Employers are not required to form and promulgate rules for the government of their employees that will meet every emergency or contingency that may arise in railroad service. In framing such rules they are bound only to the exercise of ordinary care. They are bound to adopt only such rules as experience shows to be reasonably necessary. And in this case, if the jury find that the defendant had promulgated no rule requiring warning to be given to the deceased that the brakes were to be applied, before they can find that the absence of such rule resulted directly in the death of the deceased, they must first find that the defendant in the failure to publish such a rule was guilty of negligence."

We think that saying they were bound to adopt only such rules as experience shows to be reasonably necessary limits the rules too narrowly; we do not understand that that means the experience of that particular road, but a general experience. We have no fault to find with it on that account. But we think they are bound to adopt such rules as a person of ordinary care would discover and must know would be necessary for the safety of employees, even though it might have been some new thing, as some new employment or some new condition, with respect to which railroads and railroad men had no experience. So, if the matter of using these other brakes was somewhat new and experience had not proved the necessity of such a rule as plaintiff in error thinks should have have been adopted, yet if it would be apparent to a person of ordinary care, skill and observation that such a rule would be necessary, the company would be required to adopt it, nevertheless.

We find no other errors in the record worthy of remark, but on account of the error of the court with respect to this last charge and especially with respect to request No. 7, at page 44, which was given, the judgment of the court of common pleas will be reversed and the cause remanded for a new trial. [The following was delivered later in the term.]

Our attention has been called to the fact that in the opinion of this court, which was handed down last Tuesday, we did not pass distinctly upon certain alleged errors which counsel for plaintiff in error consider important and about which they are desirous of having us express our opinion so that counsel and the court upon a re-trial of the case inay be advised of the views of this court.

One of the acts of negligence charged against the railroad company was that it had failed to provide a rule whereby the engineer should warn trainmen of his purpose to apply the steam brakes, the contention of the plaintiff in error here and in the court below being, that there should have been a rule applicable to the applying of the service brake, upon the theory that when an engineer undertakes to apply the service brake he is apt, whether from the character of the machinery, or from his own unskillfulness, to so apply the brakes as to make what is called an emergency brake or an emergency application of the brakes, which brings the train to a very sudden stop and is apt to throw the trainmen off the train and injure them and because of this being likely to happen, there should have been a rule that when he was about to apply the brakes, he should give warning. They say now in argument that they do not claim he should give warning of his purpose to apply the emergency brake. It is apparent that generally, at least, the emergency itself would not admit of his taking time to give warning,

Huron Circuit Court.

that if he was about to apply it the emergency would probably require that he should do so instantly or as quickly as possible.

Without expressing any opinion as to whether there should be such a rule or not, it appearing under the authorities that that is a question that should be first submitted to the jury, we come to the consideration of certain instructions to the jury given by the trial court upon the subject of this rule which it is claimed by the plaintiff in error should have been omitted. These instructions are numbers 13 and 16 requested by counsel for defendant [the railroad company], and something more upon the subject in the general charge of the court, at pages 46 and 47.

Number 13, reads as follows: "If the jury find that there was no rule of the defendant providing for warning the deceased that the brake was to be applied; and also find that the deceased knew that there was no such rule, and continued in the service of the defendant as brakeman without complaint or objection, he assumes the risk incident to such failure to provide such rule, and the plaintiff cannot recover in this case on the ground of the failure to provide such rule."

It will be observed that there is nothing said in that instruction about whether the deceased knew of the risk or danger incident to the operation of the train without such a rule and we think that instruction was faulty in that respect, and No. 16 which is substantially the same, except that it adds that if the absence of the rule was the proximate cause of the death of the decedent, the plaintiff cannot recover, has in our opinion, the same fault; that is to say, it does not contain the qualification providing that the deceased should have known of the absence of the rule and of the risk or danger incident to operating the train without such a rule in order to be bound by the rule of law touching assumption of risks.

The rule upon the subject of the assumption of risks incident to the master's method of carrying on his business is stated in the 14 Ency. of Law (1 ed.), 845, as follows: "Furthermore the servant takes the risk of the master's mode of conducting his business, though a safer one might be followed, if the servant fully knows the risk and continues to work."

There is a considerable discussion of the matter and a citation of authorities and running through most of the authorities is the idea that the servant must not only know of the absence of the rule, if there is no rule, but he must know that it is risky or dangerous to operate under the method by which the master carries on his business.

In Master's Liability for Injuries to Servant, by Bailey, at pages 142 and 146, something is said upon that subject of about the same import. At the head of this chapter beginning at page 142 certain rules are laid down, i. e.: "The master may conduct his business in his own way although another method may be less hazardous. The servant assumes the risk of a more hazardous method if he knows the danger attending it." It is not that he simply knows the method but he must know the danger attending the method. That is discussed at page 145 at some length. I will not take time to read the discussion, but I call attention to the fact that these defects in these special instructions were fully cured, as it seems to us, in the general charge of the court. I will read from page 55. The court says: "During the argument I have been asked to give certain other instructions and so far as I deem them proper and with such modifications as seem to me necessary to make them conform to my

Hill v. Railway Co.

views of the law, I will give them." Then the court quotes from a request to charge: "The defendant was not bound to promulgate or publish a rule providing a warning to be given by the engineer of an intention to make an emergency application of the brakes on the occasion in question," and proceeds to comment upon that as follows:

"The question of whether the defendant was required by law to make rules for the protection of its employees in the matter of giving signals to trainmen of an intention to apply the air brakes depends upon whether such rules were reasonable and practicable and whether they would have the result intended in the actual course of events; whether they would afford any additional security to the employees and whether, in the exercise of ordinary care, the defendant company was required to make them, and before the argument I gave you one instruction as to the effect of knowledge on the part of the employee, the decedent here, William Hill, of the non-existence of such a rule on the part of the defendant company."

"I have been asked to give you some additional instructions in this regard, and I say to you that even though William Hill knew, or by the exercise of care, ought to have known that ro rule for his protection in the regard complained of, had been adopted, yet, unless you find from the evidence that he also knew and understood and realized the danger which might result from the absence of warning or protection in question, he did not assume the hazard or danger resulting or existing by reason of the want of such warning and rule; but if he knew that there was no rule of the company requiring warning signals by the application of the air-brakes, or that such application of said brakes sometimes resulted in such a sudden stoppage of the train as would be hazardous to a brakeman situated as he was situated, on the top of the car at the time of the occurrence under investigation, if he knew that such sudden stoppage of the train without warning, signal or rule therefor was liable to occur at any time, then he could not wilfully shut his eyes to the danger so caused, but such danger would be one of the hazards assumed by him. Whether he had or had not such knowledge, or whether in the first instance, ordinary care required the making of such a rule, are both questions for you. The law would not require such a rule if it would be impracticable; if it would not have some tendency to protect the employee, or if the exercise of ordinary care would not require it."

Now, we think that instruction in the general charge upon that subject is correct. Our attention has been called to Van Dusen Gas and Gasoline Engine Co. v. Schelies, 61 Ohio St., 298 [55 N. E. Rep. 998], a case which we have had occasion to examine and apply several times, and it is urged by plaintiff in error that the proper rule applicable to this case is there laid down, that is, that the question whether the servant, knowing of the absence of this rule and knowing of the danger, was guilty of contributory negligence in remaining in the employment of the master, should have been submitted to the jury and that they should not have been instructed that he assumed the risk if he knew of the absence of the rule and knew of the risk; but we think that VanDusen v. Schelies, supra, as well as the cases referred to in the opinion of the court in that case, belong to a different class of cases from this. They belong to a class of cases where the servant is directed and proceeds under a particular order or direction to do a thing and there arises some emergency that does not admit of the servant taking time for thought

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and consideration as to whether he shall obey. He proceeds at once in accordance with the direction of the master and the only thing that excuses the servant in taking a hazardous position or doing a hazardous thing that would be otherwise inexcusable and would otherwise defeat his recovery, is the order which is given him and which he proceeds to obey. It does not appear that the case at bar comes within that class of cases. Here the servant was simply proceeding in his usual employment, and in pursuance of any particular order to do any particular thing.

It

We think the court was right also in not applying the rule as laid down in Chicago & O. Coal & Car Co. v. Norman, 49 Ohio St., 598, [32 N E. Rep. 857]. That is referred to in Van Dusen Gas & Gasoline Co. v. Schelies, supra, where it is said: "Counsel contend that the case should be ruled by Coal Car Co. v. Norman, 49 Ohio St., 598. This we think is a mistake. belongs to a different class of cases. It turned on a question of pleading. He averred that the injury to him occurred without fault on his part. It was held that this did not dispense with an averment required in that class of cases, that he was without knowledge of the dangerous character of the place in which he received his injury; or, having such knowledge, had complained of it to his master. For if he had such knowledge and failed to inform his master, he assumed the risk by continuing in his service without doing so."

We are not aware of any decision holding that, in a case like this, which has no reference to a dangerous place, it is necessary to aver, that the servant had no knowledge of the absence of the rule.

Finding no error in the charge of the court on the subject of the rule we do not care to discuss the case further.

EXECUTORS AND ADMINISTRATORS-LIMITATION OF ACTIONS [Huron Circuit Court, 1901.]

Haynes, Parker and Hull, JJ.

GEORGE W. CROUSE ET AL. v. Louise H. FRYBarger et al.

1. LIMITATION OF ACTIONS NOT REQUIRED TO BE SPECIALLY PLEADED, WHEN. When facts and dates relative to presentation and rejection of a claim by an administrator are fully set out, either in the petition or answer, an answer averring that "the right of recovery has long since been barred" is sufficient to interpose Sec. 6098, Rev. Stat., providing that after a claim has been rejected upon requisition of an heir or creditor, suit must be brought within six months of the time of such rejection, as a defense to the claim. It is not necessary, under such circumstances, that the statute should be specifically pleaded.

2. SECTIONS 6097 AND 6098, REV. STAT., Should be Construed TogETHER. Section 6097, Rev. Stat., providing that claimant shall, within six months after such dispute or rejection, if the debt, or any part thereof, be then due, or within six months after some part thereof shall have become due, com. mence a suit for the recovery thereof, or be forever barred from maintaining any action thereon," and Sec. 6098, Rev. Stat., providing that after a claim is disallowed by an administrator or executor, the holder shall be required within six months to bring his suit to enforce his claim, are in pari materia and both should receive the same construction. A claim that would be barred under Sec. 6097, if rejected by an executor or administrator, is, there fore, also barred under Sec. 6098, when rejected on the requisition therein provided for, although the words respecting the bar are not repeated in Sec 6098.