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Lake Circuit Court.

8. ASSUMPTION OF RISK, A QUESTION OF LAW-CONTRIBUTORY NEgligence, of FACT.

The question of the risks assumed between master and servant is a question of law for the court, while the question of contributory negligence is a question of fact for the jury, to be decided by the jury under all the evidence bearing on the point.

9. KNOWLEDge of Danger does not always Defeat Recovery.

Notwithstanding the rule in Coal and Car Co. v. Norman, 49 Ohio St. 598, that the servant complaining of an injury resulting from a defect of appliances or machinery, or even of the place of employment, must allege that the master knew of the defect or danger and that the servant did not, recovery may not be defeated simply by the fact that the servant knew of the danger. Where, if the servant knew of the defect or danger before the accident, there is good and sufficient reason at the time of the accident for his not remembering it, that is, the nature of his business was such that it would naturally and obviously take his mind there from, such as would induce ordinary men usually to forget, he cannot be held guilty of contributory negligence for forgetting, so as to defeat his recovery.

10. EXTRAORDINARY OR UNUSUAL DANGER.

A standpipe placed in such close proximity to a railroad track that a brakeman on a running train would be injured by colliding with it while examining a hot box, is not one of the usual and ordinary dangers assumed by a brakeman in his contract of employment, the location and existence of which he is presumed to know, but it is oue produced by the negligence of the company, for which recovery can only be defeated by the brakeman's contributory negligence.

11. KNOWLEDGE TO DEFEAT RECOVERY MUST EXTEND TO DANGERS.

The mere fact that the plaintiff knew the position of the standpipe in question, will not defeat his recovery in an action against the company for negligence. To have that effect it must appear that he knew of its dangerous proximity

to the track.

12. NON-EXPERT TESTIMONY as to PersONAL INJURY.

In an action for pe sonal injuries, a non-expert witness may testify that plaintiff "was not able to work at all," but testimony of such witness that "I did not consider him a well man, etc.," is not as to a fact but is in the nature of an opinion on the general result of his idea of the man and is improper.

13. NON-EXPERT TESTIMONY AS TO CONDITION OF INJURED PERSON.

A non-expert medical witness may answer a question as to the condition of a person injured, as to the suffering and pain and as to strength and ability to work; and no objection can be made to the response: "He complained all the time of pain through his kidneys and looked pale; he did not look like a well man and did not move around like a man that had any energy all the time he worked for me," but a response, "I could not use him on inside work nor on blinds before he would faint right away and have to quit; what the cause of it was is something I don't know," goes beyond the proper line of such testimony.

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14. ANSWERS PARTLY COMPETENT AND PARTLY INCompetent.

Where the answer to a question was partly proper and partly improper, a motion to exclude the whole answer should be overruled. Thus, where a non-expert witness, in response to a question concerning the person injured, stated that he looked pale when he tried to work; he tried to hoe a minute or two and quit" and that "he was sickly and complained a great deal," the latter might properly have been excluded, but the motion to exclude being to the whole answer, it was properly overruled.

15. CHANGE IN CONSTRUCTION AFTER ACCIDENT.

The admission of evidence, that a defendant changed a dangerous appliance immediately after an accident is upon the principle of cause and effect; that is, that knowledge of the accident having come to the defendant, that he knew from that fact that the place was dangerous; and that he had to remedy it and that he immediately did so; and as such, tends to prove an admission of its dangerous character.

Railway Co. v Godwin.

16. CHANGE MUST BE WITHIN REASONABLE TIME.

Evidence of a change in appliances, machinery or construction, claimed to be dangerous, made after an accident, to be competent as an admission of dangerous character, must relate to a period within a reasonable time after the accident. Thus where five years elapsed between the time of accident to a brakeman caused by colliding with a standpipe and the removal of such pipe farther away from the track, evidence of such removal, as tending to show its dangerous proximity to the track, is incompetent.

17. EVIDENCE OF RELATIVE DISTANCES OF STANDPIPES.

Evidence of the relative distances of water pipes from the track of a railroad, the measurements of which were taken more than four years after the happening of an accident, alleged to have been caused by reason of a water pipe being too close to the track, is too remote to show negligence in placing the water pipe in question nearer than the others, unless evidence is offered to show that all had stood in their respective positions during all this period and were in precisely the same places as when the accident occurred, and especially where it appears that the railroad company had no plan laid out for the placing of such pipes, one of which, at least, was nearer than the one causing the injury.

18. QUESTION of REASONABLE TIME IS for the Judge.

The question as to what is a reasonable time, between an accident and a change in appliance, machinery or construction, as determining the competency of such evidence, is a question for the judge and must be determined before the jury will be entitled to consider such evidence.

19. RULE AS TO REVERSAL AS AGAINST EVIDENCE.

The mere fact that a reviewing court would probably have found differently from the finding of the jury is not sufficient to justify a reversal as against the weight of the evidence.

LAUBIE, J.

The case of the Lake Shore and Michigan Southern Railway Company against Charles W. Godwin is a proceeding in error to reverse the judgment of the common pleas court of this county, and is a case brought by Godwin against the railway company to recover for injuries received by him at Painesville station, by coming in contact with a water pipe or standpipe, as it is called, adjacent to the track.

He was the brakeman upon the train, head brakeman, and on the occasion in question, having discovered a hot box, as it is called, upon one of the cars, he stepped down upon the ladder which was on the side of the car, and not upon the end, and while bending down and outward to look at the box to see its condition-whether it was necessary for the train to stop there in order to remedy the trouble-he was struck by the standpipe and knocked off and injured.

There was a judgment in favor of the plaintiff below, which is now sought to be reversed.

The case was presented to us in argument by counsel for the railroad company largely upon general principles, without discussing the particular questions involved, although some of them were referred to specifically, especially by the counsel closing the case, and the claim was made that none of the exceptions contained in the record were waived, which required this court to examine them all.

A great many requests were made upon the part of the defendant below, the railway company, to be given to the jury.

Some of these will be noticed separately and those that are not noticed separately will be found to be disposed of upon the principles which I shall announce as the law of the case hereafter.

Lake Circuit Court.

The first two requests asked for by the defendant, the railway company, referred to the employment or reception of foreign cars by this railway company and their transportation over the line of the road.

If there has been any claim upon the part of the plaintiff of negligence in the defendant by reason of the fact that the car, upon which he claimed to have received his injury, was a foreign car, and did not belong to the Lake Shore Railway Company, these instructions might very properly have been given to the jury, but there was no claim of negligence or attempt to recover by reason of the fact that the car was not one of the cars of the Lake Shore Company, and, therefore, the propositions, embraced in these two requests, were in the nature of abstract propositions and not demanded by the issues in the case; and, therefore, the court properly refused to give them.

The third request is as follows:

"If the jury shall find that the standpipe complained of, had been located as it was at the time of the accident for many years; that fifty or more freight trains, with a complement of men, passed it every day, all having like duties, and no accident or injury happened or was suffered by any; that during all this time the standpipe uniformly answered its purposes without complaint from any one, the jury may take such facts and experience and use them to rebut negligence in the use of such pipe in that location; that such use and freedom from injury would constitute a reasonable test, and that the company might continue to use it without imputation of negligence."

It is sufficient to say in regard to this request, that the jury would be misled by the last sentence: "That such use and freedom from injury would constitute a reasonable test and that the company might continue to use it without imputation of negligence." That would not relieve the company from the charge of negligence, if, in fact, the standpipe was so near the railroad track that it did not afford reasonable safety and security to the employes of the company in the performance of their duties.

The eighth request was given; the fourth, fifth, and sixth, were given by the court in its general charge, almost in the language of the requests asked.

The ninth request was given so far as the defendant below was entitled to it. The request is as follows:

"That the defendant had the right to construct its road in its own way, and had the right to locate and maintain its standpipes according to its own judgment, provided, the standpipes, so located, were open and obvious, and that its employes, including the plaintiff, knew or had the means of knowing their location; that it had the right to commit the construction and location of its standpipes to its engineer or superintendent of construction; and this fact is not abridged by the fact that it might have been safer to its employes if the standpipe had been placed farther from the track; nor by the fact that the jury may differ with such engineer or superintendent as to the proper location of such pipes."

So far as the right to construct its road, as referred to in this request, was the principle involved in the case, it was given in charge to the jury by the court. And so far as it states that it had the right to commit the construction and location of its standpipes to its engineer or superintendent of construction is coucerned, it might well mislead the jury in the belief that if the railway company did do that, did so commit its con

Railway Co. v. Godwin.

struction to these officers, that thereupon it would be relieved of all obligations, with reference thereto, toward its servants. In this respect the jury might well be misled by this instruction and it was properly refused. And in some other respects, in which is involved the general principles of the law, applicable to a case of this character, to be hereafter referred to, the court properly refused to give it.

The tenth instruction asked was given so far as it was good, and was refused on the general principles of law, applicable to this case; so of the eleventh request. The twelfth request, referred to the disobedience of the rules of the company upon the part of the plaintiff, and was largely pressed in the argument, especially by the counsel in the close of the case for the plaintiff in error.

In reference to this we see no rule which specially applies to this class of dangers, or of the duties that it could be claimed the plaintiff below violated, and therefore the court properly refused to give the request. So far as the rules, introduced in evidence, were concerned, bore upon the conduct of the plaintiff, they were simply in regard to the general principles of contributory negligence upon his part, or the proper and due observance of care upon his part in the discharge of his duty, and needed no special instruction of any character.

The thirteenth instruction was given. The fifteenth instruction asked for was:

"That if the jury should find from the evidence that brakemen were accustomed between stations to descend the ladder of a car to examine whether boxes were heated, at places where no obstructions were in sight or to be expected, that fact would not justify the plaintiff in so exposing himself while passing stations, when he knew he was passing such stations."

This assumes that always in passing stations the party would be in danger on the cars of the company in the discharge of his duties; and being wrongful in thus assuming this fact, of course, the court properly refused to give the request.

The sixteenth request was:

"If the jury find from the evidence that plaintiff, knowing that he was passing a station and that the train was in rapid motion, climbed down a ladder on the side of a car in the train, when he knew or might have known that he would pass structures near to the track on which the train was, such act would be such negligence that he cannot recover in this action."

That also assumes that in the doing of such act he would be guilty of negligence, which was a matter of fact for the jury, from all of the evidence, and we think was properly refused.

As to the others, which I have not referred to, running up to seventeen and eighteen, as I have said, they will be disposed of upon principle in the announcement that we make of the rule of law applicable to cases of this character, when we come to consider subsequent exceptions; and that is the claim made that the verdict was not sustained by the evidence and is contrary to law.

This presents a consideration of all the evidence and of the charge of the court in connection therewith, as it is claimed that the charge was erroneous upon principle and misled the jury in the application of the law and evidence.

Counsel in this respect make claims in reference to the law which are incorrect. Indeed, the court itself, in its charge to the jury, made

Lake Circuit Court.

some of the same mistakes or worse. But they were in favor of the railway company and against the plaintiff, Godwin. So that so far as they are concerned no complaint could be made in that regard by the railway company.

In regard to the general principles applicable to the risks which a servant assumes when he enters into the employment of his master, and in reference to the character of the service, it is entirely immaterial what it may be, whether a railway service or what not, so far as the principle of law is concerned. Where the party is required, in accordance with the rule of law which declares that where the risks in the service are greater, the amount of care which shall constitute ordinary care is greater, so far as that principle is concerned, the nature of the service is immaterial to the case. The principle is applicable alike to all, and that is, that the master and the servant owe to each other the duty of exercising ordinary care in the discharge of their relative obligations to each other, and their duties as measured by the character and the risks embraced in the service.

And, further, it is entirely immaterial as to the character of the service and employment upon the question of what risks and dangers the servant assumes by virtue of his contract of service. So that no special attention need be given or called to the fact that this was a railway service, or the service upon the railroad, which was one of great hazard, or more hazardous than many other employments.

Now what risk or dangers did the servant assume by contract in entering the service of the railway company? Here is where the court erred somewhat in favor of the railway company, in its charge to the jury, and where counsel for the railway company now claim, erroneously, too broad a principle.

Under the law by virtue of the contract which the servant enters into, he assumes only the ordinary and usual dangers of such employment. This, ex vi termini, includes all other risks and dangers. It excludes all unusual or extraordinary risks or dangers to the servant, growing out of any negligence on the part of the employer which is due from him to the servant.

That was an important consideration to keep before the minds of the court and the jury in this case. It became a serious question whether it was one of the ordinary and usual dangers under his contract of service, that the plaintiff, Godwin, was exposed to in this instance.

And yet, while I say this, it may be possible that after all, in its final result, it is in some sense immaterial, the confounding of these risks and dangers and grouping them all into one class, as was done by the court below and as is so frequently done in our text books and in the reported cases. They confound these various classes of dangers and they hold that if the servant had knowledge of these extraordinary or unusual dangers, or of those to which he was subjected by reason of the negligence of the master, or by violation of duty upon the part of the master, that then they are risks and dangers that he assumes as incident to his employment.

And so it is said, and was said by the court below, that if he did not even know of these daugers, but might, in the exercise of ordinary care, have known of them, and in the exercise of such care have protected himself from injury by reason thereof, then it was a risk which he assumed in entering the employment.

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