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Railway Co. v. Godwin.

I say this is confounding the distinction between those dangers and risks which he, in law, assumed by virtue of his contract and those which he assumes or which fall upon him in some other way or upon some other principle. In other words, he did not assume extraordinary or unusual risks and the railway company must invoke some other principle to defeat his recovery than that he assumed the risk of such dangers under his contract of service.

That other principle is the doctrine of contributory negligence. The servant can only be defeated from recovery for injuries received in consequence of some unusual or extraordinary risks or dangers to which the master has subjected him, by his own negligence, contributing to his injury; and he may not be dismissed summarily upon the proposition that he assumed such risks when he entered the service. It is a question of law for the court to say to the jury that he assumed such risk, and that ends it, but when you come to the question of defeating him upon these other causes of action by reason of his own negligence contributing to produce the injury, that is a question of fact that must go to the jury, and be decided by the jury under all of the evidence bearing upon that point.

The court below charged upon this proposition in a most favorable aspect for the defendant below, the railway company, and under the most unfavorable aspect toward the plaintiff below. The court said to the jury upon this general question, and I read now from the charge:

"Among the hazards and dangers properly incident to the business and assumed by the plaintiff by his contract of employment with a defendant, were the risks of personal injury arising from the location of permanent structures open and obvious, near the line of the road, the dangerous character of which he either knew or had the means of knowing. Therefore, if this standpipe was a permanent structure and its position was unchanged during the plaintiff's employment, its location, near the track, open and obvious, and the dangers resulting from such location were either actually known to plaintiff or he had the means of knowing them, and by the exercise of ordinary care might have known of them, then the risk of personal injury from this standpipe was one of the dangers properly incident to the service for which the defendant is not liable in this action."

And again: "But you should bear in mind that if he had knowledge that the standpipe was there, and of its dangerous proximity to the cars, or had what would be equivalent to knowledge, the means of knowing that it was there, and would have known it had he exercised common prudence and ordinary care, the plaintiff would have no right

to recover.

"If this standpipe was of that kind and character, and its location was such that the same was open and obvious to such an extent that by the exercise of common prudence and ordinary care under the circumstances in which he was placed, the plaintiff would have no more right to recover than he would if he actually knew of its existence; for in such case had he used that degree of care and caution that ordinarily prudent men would have used and exercised who were engaged in the same hazardous business under the same circumstances, he would have known it was there, and its location and proximity to the train."

Here the court grouped all classes of dangers to which the servant might be subjected, together, and charged the jury that if he knew of

Lake Circuit Court.

them, or if he might have known of them by the exercise of ordinary care, and might have protected himself against them, that they were risks which he assumed under his contract of service and for which he could not recover.

It is claimed that this charge is sustained by Coal and Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857], which was a case heard simply upon demurrer to the petition. The court in that case declared it was necessary to the plaintiff to allege and show, in a case of the character then before that court, and in reference to defects in appliances or machinery, that the master had knowledge of the defect and that the servant did not.

Now, as I have said, where it is one of the usual and ordinary risks or dangers that the servant encountered in a given instance out of which grew his injury, there it would be entirely immaterial whether he knew of the danger or not, because he actually assumed, in law, and was bound to know all the usual and ordinary risks and dangers of the business which he entered into.

But when you leave that principle and go to that principle whereby, if he be injured through the negligence or violation of duty upon the part of employer, that which could alone defeat him is the fact of contributory negligence, it can only be established by all the evidence bearing upon it, and is a question of fact for the jury.

In a case of that character, the question of his knowledge and the question of his recollection of the dangers at the time, with reference to his other intelligence, his employment and the duties then incumbent upon him, with reference to all these the jury have the right to say whether or not he was guilty of contributory negligence.

Making it more special and particular, as it is said, the court declared in Coal and Car Co. v. Norman, supra, that when he complained of an injury, resulting from a defect of appliances or of the machinery, or, if you please, of the place of employment for the servant, the servant must allege that the master knew of the defect or danger, and that the servant did not.

While the court has so declared, we know that they have declared in addition to that, that in such a case the servant may not be defeated of recovery simply by the fact that he knew of the danger theretofore. That if he knew of it theretofore, that is, before the accident, but had good and sufficient excuse at the time of the accident for his not remembering it, he could not be said to be guilty of contributory negligence so as to defeat his recovery.

I say we know, from the cases that have gone up from this circuit, which we have decided in that form, and the Supreme Court have affirmed, that they have considered and established that doctrine also.

Whether it is to be considered in conflict with the Coal and Car Co. v. Norman, supra, and overruled, we are not prepared to say, and in this case we could not say it. But we refer to the fact that upon the question of contributory negligence in regard to an unusual or extraordinary danger, which the servant is subjected to, even although he may have known of the appliance and of its dangerous character, yet still, if at the time he is in the discharge of employment which would naturally and obviously take his mind off of the danger, or of the defect of the appliance, and which would induce ordinary men usually to forget, that he could be excused for forgetting and that it would not defeat his

recovery.

Railway Co. v. Godwin.

As far as that is concerned the court below wiped it all out and gave the railway company the benefit of the proposition that if he knew of the danger he could not recover or going still farther, that if he might have known of it in the exercise of ordinary care, he still could not

recover.

So far as the law of the case is concerned in reference to this, it is evident that this was not, under the evidence, one of the usual and ordinary risks of the service. The jury found so-must have found so in order to have arrived at their verdict, and we cannot say that the evidence did not justify them in so finding. If it was a case where the company were negligent, or violated any duty which they owed to the brakeman, in placing that standpipe as near the track as it was placed, then it was not one of the usual and ordinary risks of the employment or dangers, which he, the brakeman, assumed by virtue of his contract of employment; it was then one produced by the negligence of the employer, which could only be defeated, or recovery could only be defeated, by reason of the fact that the plaintiff himself was guilty of contributory negligence.

It is the duty of the railroad company to construct and maintain its track and its appurtenances and appliances in such manner, as that, by the exercise of ordinary care, it shall be made as safe as possible for its servants in the discharge of their duties to the company.

If then, under that rule, this water pipe was placed so near the track that brakeman could not discharge their duties by getting down upon side ladders upon the cars to examine boxes, with reasonable safety to themselves and in the discharge of that duty, then it was a case of neglect and violation of that duty upon the part of the master.

I say, the jury so found, must have so found in this case, under the instructions of the court, and we cannot say that they disregarded the evidence in so doing.

That being the case, the question occurs, does the evidence disclose the fact that the plaintiff was guilty of contributory negligence?

This presents itself under two aspects. And in reference to the charge of the court, we take it as the court gave it. Did plaintiff know of the existence of this standpipe, and of its dangerous proximity to the track? And herein was a line of distinction drawn by the court between what it regarded as the law and the claim of counsel for the railroad company. In other words, these instructions asked for, assumed, and counsel for the railroad company now argue that if plaintiff knew the standpipe was there, that that was sufficient to defeat his recovery, mere knowledge of the fact that the pipe was there.

The court properly directed, not only should he know that the standpipe was there, but that he should know the danger which it subjected him to; that is, that it was dangerously near the track, too near the track, for safety; and that is the established principle in all the cases; not only that he knew that the thing is there or that the appliance is there, but he must know its defect or its dangers before he can be debarred of recovery.

Now then, that he knew, the plaintiff in this case, Godwin, knew that that standpipe was there, it is impossible not to believe. It is simply impossible that he did not know it was there, running on this road and on that train from Collinwood to Erie, so long as he had done, day by day, month by month, and almost year by year, it is simply an

35 O. C. D. Vol. 12

Lake Circuit Court.

impossibility that he, with his train stopping every day at Painesville station, should not have known that that water pipe was there.

He says they did not water at that pipe going east, but always watered at that pipe at Painesville when they were going west, which was on the south side of the track, while this was on the north side of the track. But that he knew that standpipe was there, it is impossible I say, to believe otherwise under this evidence, and with reference to his statement made directly afterwards, after the accident, that he knew the water plug or standpipe was there.

If this were all we should be compelled to say that this verdict was contrary to the evidence, but it is not.

The remaining and important principle still is, did he know that it was dangerous to him in the performance of his work; did he know that it was too near for safety?

Under the instruction of the court, the jury have found that he did not. If he did not, then the verdict was right.

On this proposition, if the case had been tried to us on the facts, we should be inclined to say that he knew that the pipe was too close for safety. And yet it would be difficult even to come to that conclusion under the evidence, taken as it is.

It was shown by the evidence that the standpipe, the outer rim of it, was twenty-six and seven-eighths inches from the side of the car, two feet and two and seven-eighths inches. A man would have to lean outward quite a distance in order to be struck on the back by that standpipe; so that there is abundant cause for claiming, under the evidence, that Godwin did not know, although he knew the standpipe was there, that it was too near to the track for safety. Although we might, if tried to us, have found differently from the jury in this instance, yet we are not able to say that the jury clearly erred in so finding, and it brings us down to the fact that this verdict is neither contrary to the law or to the evidence.

The remaining questions arise upon some evidence claimed to have been erroneously admitted. It is claimed that the court erred in the admission of testimony of non-experts as to the appearance and suffering and condition of health of the plaintiff below and to his ability to perform work. We have examined that evidence and the question asked, and we are not prepared to say that the court erred in the matter although the evidence did go to the extreme verge of the rule. For instance on pages 167 and 168 our attention is called to this :

"Q. Now, Mr. Philbrook, during the time he worked for you, how was it, as near as you can tell to the jury, how was his condition of health and ability to work?"

That question was objected to and the objection overruled, and an exception taken. And the question itself was proper.

"A. Well, he was not able to work at all. I did not consider him a well man."

That is giving his opinion, not stating any fact; his opinion on the general result of his idea of the man; "I did not consider him a well man, a man fit to do a day's work, during any of the time he worked for me, or during the time I have been acquainted with him, and I have seen him for the last five years."

I said the question was proper and in proper form, part of the answer was improper, but there was no request to exclude it, and so we are compelled to pass that.

Railway Co. v. Godwin.

"Q. At these times when he did work and was with you, what was his condition as to suffering and pain?"

Again objection is made, which is overruled, and an exception

taken.

And to this we say there could be no proper objection as the question was within the rule.

"A. He complained all the time of pain through his kidneys and through his back, and he looked pale. He did not look like a well man and he did not move around like a man that had any energy at all during the time that he worked for me. I could not use him on inside work nor on blinds before he would almost faint right away and have to quit. What the cause of it was, is something I don't know."

Now part of this went beyond the line, and here again there was no asking to exclude it. So that the question, being proper, whatever of the answer was improper was not asked to be ruled out and therefore there is no exception in that, that we can notice. So there may have been in some other places in this record.

Again on page 85: "When he was at work at that, what did you observe, if anything, about his ability to labor and his strength?"

That was proper, the question was right and properly admitted to be answered. But the witness asks the question, "After he was hurt?"

"Q. Yes, after he was hurt, when he worked with you and since

that time?

"A. He was sickly and complained a good deal that summer. He could not do hardly any work. He tried to hoe and he would hoe, maybe a minute or two and then have to quit, and keep on for a few hours, and then be laid up most of the day, all summer."

Now here counsel moved to have the answer excluded, but they moved to have the whole answer excluded, and part of it is competent; as to the fact that he looked pale when he tried to work and that he would try to hoe a minute or two and could not, etc., was a proper answer; that he was sickly and complained a great deal, was perhaps out of the line, and if request had been made that that part of the answer be excluded, it would have been erroneous to have refused it.

In regard to this standpipe, it came out on examination of Turner, one of the witnesses for the plaintiff and who had for many years been the agent for this company at this station, that this standpipe had been moved or removed to another place after this accident. It came out, as it were, incidentally from him, but immediately counsel for the plaintiff, who was examining him in chief, took it up and asked in regard to it, whether it had been removed since this injury had occurred. Thereupon there was an objection made and it was stated to the court in the objection that they sought to show something that had occurred six years after the accident, and the court inquired of counsel for the plaintiff below upon what principle they claimed that testimony to be competent. And thereupon, the record shows that counsel for the plaintiff stated they claimed that they had a right to show that it had been moved after the accident to another place and farther away from the track; they had measurements and would introduce measurements or testimony of measurements to show this, and that it was competent as evidence of an admission upon the part of defendant. That in its original position, when the plaintiff was injured, it was too close and known to the defendant to be too close to the track for safety; as an admission, in other words, of negligence.

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