Lucas Circuit Court.

Toledo, at a point near the foot of Buffalo street in said city. That at said place said last-named company had two railroad tracks running parallel with each other from a northerly to a southerly direction and known as "switch-back" tracks. That said tracks were so constructed as to have a steep incline at the northerly and southerly portion thereof, and between the incline at each end said tracks were from four to eight feet below the surface of the surrounding ground. The said company also maintained on the easterly side of said tracks an engine-house equipped with engines and used by the said company to furnish power for the hoisting of ore to be loaded into cars or boats along said dock. That westerly of said tracks and nearly opposite said engine house the said Hocking Valley Railway Company maintained a building in which dynamos were situated for the purpose of generating electricity to be used in carrying on its work. That at the time hereinafter named, the decedent, Patrick E. Mahoney, was employed by the said The Hocking Valley Railway Company to operate the dynamos in said building, and also to operate the engines in said engine house. That to perform said work it was necessary that he should cross and recross said tracks.

"Plaintiff further says that both of the defendants were in the habit at said time of operating engines and cars over said tracks. That said work was carried on by the defendants for their mutual profit and advantage.

"That the safety of the employes at work on or about said trains and ordinary care on the part of delendants, required that whenever said cars upon said tracks were about to be moved over said tracks, a whistle or bell should be sounded or other warning given to persons who might be upon said tracks that said cars were about to be moved.

Plaintiff further says that ordinary care and the safety of employes at work on or about said switch-back tracks required that the defendants should have and enforce a rule requiring the men composing the crew of an engine or train to send a man forward ahead of the engine or cars being moved into or upon the said tracks to give warning to said. employes of their approach, and further requiring the bell and whistle to be sounded upon such engine before going down upon or over said switch-back tracks.

"And yet the defendants and each of them did wrongfully, carelessly and negligently altogether fail and neglect to have and provide any such rule or requirement, to insure notice of the approach of such an engine or train upon said tracks.

Plaintiff further says that said dynamo-house and said enginehouse were situated above the level of said tracks, and the safety of their employes required that the defendants should provide a foot-bridge or viaduct over said tracks so as to allow the persons employed about said buildings to pass freely from one building to the other without going upon said tracks."

That averment of negligence was abandoned at the trial.

"Plaintiff further says that at and for a long time prior to the said May 11, 1899, the defendants were accustomed to allow and require said decedent and other persons who might be engaged at work in and about said buildings to pass from one building to the other, and provided steps down to said tracks and a pathway or walk across said tracks on the surface of the ground between said buildings for said purposes. * * *

"That some time prior to four o'clock in the morning of said day said companies had caused tour freight cars to be placed upon the east

Pennsylvania Co. v. Mahoney.

erly of said tracks and had allowed and stationed said four cars so as to be separated at said crossing between said buildings, to allow said Patrick E. Mahoney and other persons to cross said tracks between said cars in going from one of said buildings to the other.

66

That while said Patrick E. Mahoney was so at work, it became necessary for him to, and he did attempt to, cross from the said easterly building to the said building west of said tracks. That just as he was in the act of crossing said easterly track in going to the building on the westerly side of said tracks, the defendants did wrongfully, carelessly and negligently cause an engine with a car or cars attached to be run upon said easterly track and strike with great force said cars which were so standing upon said track. That by reason of said cars being so struck, the same were run with great speed in a southerly direction, and thereby the said four cars were forced together, and the said Patrick E. Mahoney was caught and crushed between the couplers or other parts of two of said cars and thrown upon said track, so that a part of one of said cars passed over his body. That by reason of being so caught between said cars and the same passing over him he was crushed, cut, mangled and bruised, and received such great injuries as to cause his death within a short time thereafter.

"Plaintiff further says that the said defendants did wrongfully, carelessly and negligently run said engine and cars upon said track without giving any warning whatever that the said cars were about to be moved.

'Plaintiff further says that the said Patrick E. Mahoney had no warning or knowledge of the approach of said engine or cars, and did not know the danger to which he was exposed in crossing said track at said time, and was free from negligence contributing to the injuries so received by him.

"That the defendant knew, or by the use of ordinary care ought to have known, that the said decedent while performing his work was crossing said tracks; and that to run said engine and cars over said tracks without giving him any warning of the approach of the same, would expose him to the danger of receiving great bodily injury. That the death of the said decedent was caused solely through the negligence of the said defendants."

The petition then sets forth the names and relationship of the survivors entitled to participate in any amount that may be recovered in the action, and sets forth that the damages amount to the sum of $10,000 and closes with a prayer for judgment for that amount.

The answers of the companies deny all negligence, and aver that the plaintiff came to his death through contributory negligence in failing to look and listen to satisfy himself that no engine was approaching said crossing before he stepped upon the track where he was killed, and that his death was not caused by their negligence.

The case was submitted to a jury, which returned a verdict in favor of the plaintiff against both defendants for the sum of $7,500.

Motions for a new trial, based upon various grounds, and among them, that the verdict was not sustained by the evidence, were filed on behalf of each of the defendant railroad companies, which were overruled, and judgment was entered upon the verdict.

The Pennsylvania Company filed its petition in error here, averring that the verdict was contrary to law and not sustained by sufficient evidence, that errors of law occurred upon the trial prejudicial to it and that

24 O. C. D. Vol. 12

Lucas Circuit Court.

the court erred in overruling its motion for a new trial; and within four months of the time that the judgment was entered in the court below, the Hocking Valley Company filed its cross-petition in error averring practically the same errors with respect to that company. A bill of exceptions was taken in due time and in due form, and is a part of the record presented to us.

The construction of what is called the switch-back for the movement of cars after they have been unloaded, so that they were run down into this cut between the dynamo house and the engine house where the deceased was required to work, and the physical conditions generally, are very fairly described in the petition. It appears that the deceased was at work for the Hocking Valley Company, as averred in the petition; that his work required him to be a part of the time at the dynamo house on the west side of the tracks, and a part of the time at the engine house on the east side of the tracks; that steps had been constructed down into this cut by the railway company to make it convenient for him to cross from the one place to the other, and that his duty required him to cross-some witnesses say as frequently at times as from ten to fifteen minutes, and other witnesses say as often as once an hour. That in the operation of this unloading machinery, in the season when navigation was open, cars were sent up to the south on the east side of the engine house at the end of this switch-back, and then by gravitation -the grade being so constructed-they would run back onto the tracks lying in this low place between the two stations where the deceased was required to work, and that in busy times there were a great many cars run into the cut in that way in the course of a day. There is evidence tending to show that, in order to make it convenient and safe for the persons engaged as the deceased was engaged, as well as for persons who were engaged upon the docks in other classes of work-dock men who were required to cross over these tracks, it was the purpose and custom of the companies to allow spaces to be left between the cars upon these tracks. This provision was made so that these dock men and the deceased and others engaged in like employment, might pass between the cars without being required, as they were at times, to climb over or under the cars.

There is evidence, however, tending to show that this was not uniformly done, but that very often these dock men-who were quite numerous, sometimes running up to hundreds-were required to get across all the tracks as best they could; there being, besides these two tracks at that point, some eight or nine other tracks that they were required to cross, which did not lie down in this low place between these buildings; but there is some evidence tending to show that the purposes and the rule of the companies, or at least the order of those in authority, required that spaces should be left between the cars at this point.

On the occasion of this accident, four cars, as stated in the petition and as shown by the evidence, had been left in this cut or low place on these tracks. The exact location of every one of these cars is a matter of some uncertainty, but we do not regard that as very essential; two of the cars, at least, were between these two buildings, or stations, at which the deceased was required to work; the other two cars, according to the weight of the evidence, were in close proximity to these and lying immediately to the north of them upon the track-though there is some testimony tending to show that they were perhaps a hundred feet

Pennsylvania Co. v. Mahoney.

north of the two cars lying next to the engine house-and between the car lying farthest to the south and the car next north of it, there was a space left of about eighteen or twenty inches. Whether this was designedly or accidentally left, does not clearly appear. Upon this morning certain employes had passed across the tracks between those two cars, and it was between those two cars, evidently, that, in attempting to cross over from one station to the other, deceased got caught and crushed.

The accident happened just about the time the sun came up over the horizon, so that it was not dark, and neither was it, in the cut, full daylight. It appears that some of the railroad men at work about there were still carrying their lanterns; they had not laid them aside, though it is not apparent that they then had need of the lanterns. The headlight was still burning upon the engine that caused these cars to be moved, the movement of which resulted in the injury to the deceased.

The locomotive that moved these cars passed down to the north a very few minutes before this accident occurred, upon a track lying immediately west of the dynamo house; it was there switched onto one of these tracks in the cut and came upon that track bringing a gondola car ahead of it and attached to it. It was brought down until it came in contact with these cars standing upon the track in the cut, and when these cars were brought together, the persons operating the train, or two of them at least who were standing upon the front or south end of this gondola car attached to the engine, heard a cry; evidently the cry of the deceased when he was injured, and they ran forward to the south, passing by the three cars and coming to the space between the third and fourth (counting from the north to the south), and there they found him upon the ground between the tracks, upon his hands and knees, evidently very much injured.

He was not able to give any account of how he came to be injured; I believe the only words he uttered were Take me up" or " Help me out of here."

He appears to have been caught between the bumpers, they having caught upon his person about his hips or just above his hips. When these persons came to this place where they found the deceased, it appears that, by the force of the collision of the cars, the car farthest to the south had been moved somewhat further south and somewhat up the grade towards the part of the switchback from which it had been sent down, and that it was starting to run back towards the north, and they undertook to stop it, but they were unable to do so, and called upon the deceased to lie down so that it might pass over him without injuring him, which he did, and they then succeeded in stopping the car and pushing it out of the way and taking him out from his place of peril.

It is undisputed that in coming into this cut with the locomotive and car upon this occasion and coming down to these other cars (the purpose being to hitch onto them and take them out of the cut, as was customarily done), no signal was given from the locomotive by way of blowing the whistle, ringing the bell or otherwise, and that no special warning was given to the deceased of the approach of the locomotive and car.

Defendants in error contend that some warning ought to have been given, either by the blowing of the whistle, the ringing of the bell or by sending a man forward to look out for persons who might be passing between the cars, or by all of these methods; and the first question

that is presented, therefore, is whether the railway companies were guilty of negligence in thus operating their train.

I should say it is conceded also that there was no rule of the company requiring that warning should be given, no rule for the guidance of the trainmen, imposing upon them the duty of giving warning by any signal, and it was not a crossing place at which, by any statutory law, the giving of any warning was required. Nevertheless, it is insisted that since this was a place frequently crossed by the employes of the railroad companies-employes who were not trainmen but who were required to go backward and forward across the tracks to and from their work, and since this was a place at which the deceased and persons in like employment for the railroad company were required to cross, as the railroad companies well knew-it devolved upon them before moving trains of cars or locomotives upon those tracks, to give some warning of the purpose to move them.

We are all of the opinion that this contention upon the part of the defendant in error is well founded; that the rules of law applying to the circumstances of this case required that some notice or warning should be given to employes who were required to cross the tracks at this place, especially to those who were in such service as the deceased was performing at this time and place.

A general rule upon the subject of the movement of trains where persons cross by permission is laid down in Harriman v. Railway Co., 45 Ohio St., 11 [12 N. E. Rep., 451; 4 A. S. Rep., 507]:

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Where a railroad company has for a long time permitted the public, including children, to travel and pass habitually over its road at a given point, without objection or hindrance, it should, in the operation of its trains and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof, and is bound to exercise care, having due regard to such probable use, and proportioned to the probable danger to persons so using its road."

In the course of the opinion the learned judge, speaking for the court, cites as one of the authorities upon which the court relies, Barry v. Railroad Co., 92 N. Y. 289 [44 Am. Rep., 377], in which this language is used:

"There can be no doubt that the acquiescence of the defendant for so long a time, in the crossing of the tracks by pedestrians, amounted to a license and permission, by defendant, to all persons to cross the tracks at this point. These circumstances imposed a duty upon the defendant in respect to persons using the crossing to exercise reasonable care in the movement of its trains. * * * So long as it permitted the public use, it was chargeable with knowledge of the danger to human life from operating its trains at that point, and was bound to use such reasonable precaution in their management, as ordinary prudence dictated, to protect wayfarers from injury.

"The ground of liability in this case is negligence, and the duty of the defendant to exercise reasonable care, existed irrespective of the fact whether the plaintiff's intestate had a fixed legal right to cross the track, or was there simply by the defendant's implied permission. * * The circumstances known to the defendant required this. whether the plaintiff's intestate was there by right or by a mere license."

*

These were both cases in which the action was brought on account of the death of an infant, but the rule appears to be laid down that the duty defined is owing to pedestrians, whether infants or not. In many