Слике страница
PDF
ePub

Mahoning Circuit Court.

Well, that far it is well enough, because it simply declares that the jury would have to find that she did not exercise reasonable care, but he proceeds as follows:

"Unless it appears from the evidence that at the time of starting the train, those in charge of it had knowledge of the fact, or by the exercise of ordinary care on their part, could have known that the plaintiff was in the act of alighting."

That is, while the defendant might not have been negligent in not stopping its train long enough, and the plaintill was negligent in not exercising reasonable care in hastening her departure, so as to alight before the train started, yet, if by the exercise of reasonable care on the part of defendant's servants, they could have ascertained she was alighting, then she might recover. That is, if each party was guilty of the want of ordinary care, the plaintif might recover.

The court did not mean to give that charge, because he subsequently told the jury that if the plaintiff was guilty of negligence which contributed directly to produce her injuries she could not recover. It was simply in the use of those words without due reflection that the court committed this error. Evidently it was not designed to be of the character that it is; the effect of it is simply that if each party was guilty of the want of ordinary care, the plaintiff might recover.

As a matter of course, one part of the charge there could be no exception to, if it stopped there, that if the jury understood that plaintiff was guilty of the want of ordinary care in not using reasonable diligence to alight, yet, if the defendant's servants knew she was alighting, and started up the train, she would be entitled to recover. Undoubtedly that would have been the law and this court would not have felt called upon to disturb, but the court below did not stop there. We have examined no other errors in this record, and reverse this judgment upon these.

MASTER AND SERVANT.

[Ashtabula Circuit Court, March 14, 1895.]

Frazier, Woodbury and Laubie, JJ.

LAKE SHORE & MICHIGAN SOUTHERN RAILWAY Co. v. BIXLER.

1. FIREMAN and Brakeman are Fellow SerVANTS.

The fireman of a locomotive and a brakeman on the same train are fellow servants and neither can recover for the negligence of the other.

2. Rule as to Care Required of EmpLOYER.

An employer is bound to use that degree of care and prudence generally used by prudent persons in the same business and to furnish safe and proper appliances for the performance of that duty, by the servant, or in regard to which the servant is to perform his duty; and that care is satisfied when the employer furnishes such appliances as are generally used in the business. The employer is not required to furnish absolutely safe and perfect machinery and appliances, nor is he required to insure the perfect condition thereof.

& VIOLATION OF RULES by Superior ServanT-COMPANY Liable.

If it was a rule of a railway company that a fireman was not to manage an engine in the absence of the engineer, and the conductor gave an order to the fire

Ashtabula Circuit Court.

man to assist in the switching of cars, knowing he was going to do it in the absence of the engineer, the company would be responsible on the ground that the conductor was giving an order forbidden by the rules of the employers. 4. FACTS EXEMPTING COMPANY FROM Liability.

While a railway company would be responsible if a conductor on one of its trains, the engineer being absent, directed the fireman, knowing he was going to manage the engine, to assist in the switching of certain cars, by reason of which a brakeman was injured, the company would not be liable for an accident occurring to a brakeman through such fireman, while switching cars, where there is no evidence that the conductor gave the order to the fireman to move the cars, and none to show that the conductor knew whatever he did order to be done was to be done in the absence of the engineer.

5. ERROR TO SUBMIT PROPOSITION NOT Presented.

It is error for the trial judge to submit a proposition to the jury which is not presented by the evidence.

HEARD OF Error.

LAUBIE, J.

The case of the Lake Shore & Michigan Southern Railway Company against George M. Bixler, is a proceeding in error brought to reverse the judgment of the court below, in an action on the part of Bixler against the company, to recover for injuries received while in the performance of his duties as a brakeman on the road.

The petition alleges certain acts of negligence, upon which a cause of action or right to recover is based.

It seems that Bixler was the head brakeman upon the freight train of the company and had been in its employ for some time, and on the occasion in question, was on the freight train running from Ashtabula to Youngstown. When they arrived at Andover, they put the train upon the side track, to wait for a passing train, and the conductor and engineer left the train and went to breakfast, and while they were gone, Bixler, the head brakeman, and Campbell, the rear brakeman, proceeded to change some of the cars from the center to the head of the train, the fireman undertaking to manage the train, through the engine, and by means of that to move the train. After it was coupled up over the crossing, it broke in two, at a point where there was a car that had what is called an Ames drawbar on it for coupling, and in recoupling the cars together at that point, the plaintiff was injured by having his hand caught in the machinery or appliances of the car. The negligence stated in the petition, in regard to these facts, are as follows:

"And plaintiff says that said defendant was guilty of negligence in the premises in this, to-wit:

"First. That it suffered and permitted said Ames drawbar so out of repair as aforesaid, to remain upon and be used on said car in the manner and for the time aforesaid.

"Second. That its conductor commanded and caused said work of transferring cars, as aforesaid, to be done, and left and abandoned the train (with the engineer) at the time and in the manner aforesaid.

"Third. And because of the other acts of negligence herein above

set forth."

The acts of negligence above set forth, are found in this allegation: "That when the train arrived at said station at Andover aforesaid, said conductor wrongfully and negligently permitted the fireman to act as engineer for the time being, and ordered and directed him, said plaintiff, with said fireman, and one other brakeman, to transfer certain cars

Railway Co. v. Bixler.

near the center of said train, to a position near the head thereof, by switching the same in place, which train he, said conductor and said .engineer, then and there wrongfully and negligently left and abandoned, remaining absent therefrom about thirty minutes, and thereupon and in obedience to said order, said fireman and the two brakemen undertook to do the work," and in the doing of which, as I have stated, the plaintiff had his hand caught and was injured.

The court had a peculiar case before it to try from this petition. The negligence charged against the conductor turned out to be the principal point of the case, and we find from what I have just read, and what the petition charges, "That when said train arrived at said station, at Andover, atoresaid, said conductor wrongfully and negligently permitted the fireman to act as engineer for the time being, and ordered and directed him, said plaintiff, with said fireman, and one other brakeman, to transfer certain cars near the center of said train, to a posi tion near the head thereof, by switching the same in place." It is on the face of it, pretty difficult to discover what negligence there was in this; but we pass that by for the present and I go at once to the charge of the court.

The court gave the eleventh and fourteenth requests of the counsel for plaintiff to the jury, as the law of the case, to which counsel for defendant below excepted, and those requests are as follows:

[ocr errors]

Eleventh. "It is the duty of the company to see that safe and proper cars and appliances are furnished and maintained, for the running of their trains.

Fourteenth. "In the absence of notice to the contrary, a servant has a right to assume the master will perform the duty imposed upon him, of furnishing proper, adequate and perfect implements and appli ances, necessary for the performance of any duty required of the servant."

In these requests it will be seen, that the court, without any qualification whatever, instructed the jury, in regard to absolute and perfect appliances. Is that the law? If it is, then the company is an insurer of the perfect condition of its appliances. "Sale" and "perfect" are absolute and not relative terms. When a thing is safe, it is safe absolutely, and you cannot make it any more so. When a thing is perfect, you cannot make it any more so. "Perfect" and "safe" ends the whole matter and you cannot make anything, where it is safe, more safe, or where it is perfect, more perfect. So the terms are absolute and not relative.

The duty of an employer to a servant, is to use that care and prudence that is generally used by prudent persons in the same business, and to furnish safe and proper appliances for the performance of that duty, by the servant, or in regard to which the servant is to perform his duty, and that care is satisfied when the employer turnishes such appliances as are generally used in the business; and that is very far from being required to furnish sate and perfect machinery. In these respects the court placed a duty upon the defendant company, that the law does not impose; therefore it was error.

The requests asked by counsel for the company below to be given, were those numbered eight and ten. The eighth was refused and the tenth was given, with modification.

Eighth. "If you find from the evidence, that the injury to the plaintiff was caused by the negligence of the fireman in moving said

Ashtabula Circuit Court.

train, the plaintiff cannot recover, for the reason that the fireman was a fellow servant of the plaintiff, and for any negligent or careless act of said fireman in this case, the plaintiff cannot recover."

Tenth. "If you find :rom the evidence in this case that the plaintiff would not have been injured, except for the acts of the fireman, the plaintiff cannot recover."

Upon page 103 of the record, just after the requests which the court gave to the jury, and instructed them was the law as the requests on the part of the plaintiff, we find the court gave the tenth request of the defendant, with this qualification.

Tenth. "If you find from the evidence in this case, that the plaintiff would not have been injured, except for the acts of the fireman, the plaintiff cannot recover, unless those acts were done under and in full compliance with the orders of the conductor."

And in the same connection this matter is referred to by the court in its charge, on pages 109, 112 and 119. The court says, on page 109: "We instruct you that the defendant cannot be made liable to the plaintiff, in this action, for any carelessness of the engineer, in leaving the locomotive in charge of the fireman, or for any carelessness or negli. gence of the fireman, in running said engine or cars back suddenly, or carelessly, or for any carelessness of either the fireman or engineer, unless you, each and all of you, find that it has been proven, by a preponderance of all of the evidence in this case, having any bearing thereon, that the fireman was acting under the immediate orders, directions and control of the conductor, made directly to him by the conductor, when he backed up said train, and in the backing of it up, in the way and manner that you find that it was done, as proven by the evidence, and then we instruct you that the company would not be liable for the acts of the fireman, in so backing up the train, under the directions of the conductor, unless it has also been proven, by a preponderance of all of the evidence in this case, that the backing of the irain was carelessly and negligently done, in pursuance of said orders, directions and control of the conductor."

On page 119 of the record the court says: "Does the evidence show that any orders were given by the conductor? If so, what were they and to whom were they given? Were they acted upon and carried out precisely as he gave them? Was the injury complained of caused by the carrying out any orders of the conductor precisely as he gave them, as the necessary and proximate cause of the injury ?"

It will be seen that this response was to the request made on this point by counsel for the defendant, and that the court said to the jury that they could not find, on this ground, a verdict against the defendant, unless they found that the injury was caused solely by the negligence of the conductor in ordering and directing the fireman to make that coupling, at the time when the coupling was being done, and if such was the case, then if it was negligently or carelessly done by the fireman, the plaintif would be entitled to recover, if he was injured thereby. So the court made the case turn upon the proposition, that the conductor had personally given the directions to the fireman, at the time when the coupling was being made, and the fireman carried out those orders precisely as given.

The evidence shows this state of facts. When they arrived at Andover, the conductor and engineer safely placed the train upon the

Railway Co. v. Bixler.

siding, and it was cut, as the saying is, for the highway and the water was taken by the engine after this was done; the conductor and engineer, as it is stated, went over to the hotel to get their breakfast; they were to lay there on the siding, waiting for a train to come and pass them.

Conceding for a moment that an order was given to change cars in the train from the center to the front; the parties remaining in charge of the train were the fireman and two brakemen, one of whom was the plaintif, and they proceeded in the performance of that duty and it was done in the absence of the conductor and engineer, and in the performance of that duty the train broke in two. It was not in doing any act that the conductor had instructed them to do in transferring cars, but it was in repairing that break in the train, that the plaintiff was injured.

So in regard to the coupling that was done, the conductor knew nothing about it, until after it took place. The plaintiff was injured by coupling the cars together and the conductor knew nothing of it, and consequently gave no orders to the fireman or any one else to make the coupling, except such as might be embraced in the performance of the duty of transferring these cars. It might be necessary to make that coupling and repair that break, in order to perform that duty, but as far as the coupling itself is concerned, the conductor knew nothing about it and gave no orders about it.

So far as the record discloses, the plaintiff himself was the only person that gave any orders about it. He gave the orders to the fireman and signaled the fireman to back up and make the coupling, after he had obtained a pin that he thought would do to make the coupling with. He was the one who gave the signals and directed the fireman to move the engine. Let us see about this a little further, from the record. There were but two parties who testified as to whom the orders were given, or said that they remembered anything about it, and they were the fireman, Redhead, and the plaintiff, the brakeman. The fireman

says:

"Q. Who told you what there was to do?

"Counsel for defendant object; objection overruled, and counsel for defendant except.

"A. The head brakeman and the hind man came to me and told me 'Fred Campbell and Mr. Bixler.'

"The Court: Told you what?

"Counsel for defendant object; objection overruled, and counsel for defendant except.

"A. That there were some cars in the train near the hind end, that they wanted to get ahead for Doughton, Ohio.

"The Court: What?

"A. The cars were consigned to Doughton, Ohio.

"Q. Do you know who they got their orders from?
"Counsel for defendant object.

"The Court: Did you hear the orders given?

"A. No, sir."

That is the testimony of the fireman, that no orders were given to him, that the plaintiff told him what was to be done, and that he did not hear any orders given.

We will see what the plaintif said. And I now read from the direct examination of the plaintiff on page 8.

42 O. C. D. Vol. 12

« ПретходнаНастави »