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Ashtabula Circuit Court.

"Q. When you reached Andover what happened, what was said and what was done?

"Counsel for defendant object.

"The Court:

conductor.

"A. Nothing, only we had instructions from the conductor.
"The Court: Ask the questions direct.

"Mr. Hall: I wish to have that answer withdrawn.

Confine it to what was said between you and the

"The Court: It may be withdrawn.

"Q. What, if any, authority had the conductor over you?
"Counsel for defendant object.

"The Court: We think he may answer that.

said.

"Counsel for defendant except.

"A. He was foreman over me; I was to do what he told me. "Counsel for defendant object to the answer and ask to have it excluded; motion overruled, and counsel for defendant except.

"Q. What, if anything, did he tell you, relative to making this coupling, or attempting to make it?

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

"A. He told me to do it.

"Counsel for defendant object to the answer and ask to have it excluded; motion overruled, and counsel for defendant except. "Q. Tell us what he said? A. us what

He said to do this work.

""

I cannot remember just what he

"Q. Give us the substance of what he said about it? A. He told us to do the work.

"Counsel for defendant object.

"The Court: It you can give the exact language used you should

give it.

"A. I do not recollect it.

"The Court: If you do not recollect the exact language, but you recollect the substance of what was said, then give the substance of what was said; if you do not recollect anything about it, then you cannot speak.

"Witness: I do not recollect what he said at all.

"Mr. Hoyt (resuming):

"Q. What did he say about your making these couplings that morning? A. I do not remember what he said.

"Q. You cannot give the words? A. No, sir.

'Q. Was the conductor there at the train, at the time of the accident? A. No, sir.

"Q. Where was he? A.

He was over at the hotel, I believe. "Q. Where was the engineer? A. He was with him, I believe. "Q. With who? A. The conductor.

"Q. Who were left in charge of the train? A. Myself, Fred Campbell and Harry Redhead.

"The Court: Mr. Campbell was the other brakeman?

"A. Yes, sir.

"The Court: And Mr. Redhead was the fireman?

"A. Yes, sir.

"Mr. Hoyt (resuming):

Railway Co. v. Bixler.

"Q. So the conductor and engineer were both absent?

A. Yes,

sir.

"Q. What, if any, instructions did you get from the conductor to make any transfer of any car?

"Counsel for defendant object, as he said he got none.
"The Court: Do you understand this question?
"A. Yes, sir.

"The Court: We think he may answer it.

"Counsel for defendant except.

"A. We had orders from him to do this switching.

"Counsel for defendant object to the answer and ask to have it excluded; motion overruled, and counsel for defendant except.

"Q. What switching? A. To get these cars.
"Mr. Hall: I object; I want to know when.

"The Court: When a witness commences answering let him go through with the answer. The when of it would be proper cross-examination, we think.

"Mr. Hall: I object to it, because he does not confine it to the day of the accident, and also for the reason that it calls for the opinion or construction of the witness; he having already answered that nothing was said that day, that he could remember.

"The Court: We think the objection on the last ground is well taken. It leaves him to determine what instructions were given him; what did he say?

"Q. You may state what the conductor said to you about making a transfer of certain cars, giving the substance of it?

"Counsel for defendant except.

"A. He told us to switch some cars out, that were in the rear end of the train, and put them on the head end, that were to be set off at a way station.

"Q. Did he tell you what cars? A. Yes, sir.

"Q. When was that?

"Counsel for defendant object.

"The Court: We think he may answer.

"Counsel for defendant except.

"A. He told us to do this just before he went away, and he then explained how he did the work."

Then I pass to his cross-examination on pages 25 and 26.

"Q. Did you see the conductor, when he started for his breakfast? A. I could not tell.

"Q. Did you see the engineer when he started for his breakfast? A. I could not tell whether I did or not.

"Q. Do you say that the conductor, before starting for breakfast that morning, gave you any orders? A. Yes, sir.

"Q. You do? A. He gave us orders.

"Q. I am speaking of you. Did he give you any orders? A. Yes, sir.

"Q. What did he say? A. I could not tell; he gave us orders to switch the cars.

"Q. You cannot tell what he said?

A. No, sir.

Who was present? A. I cannot tell you that.

Was anybody present? A. I cannot say.

"Q. What were you waiting for (after he was asked about going on the siding)? A. I do not know.

Ashtabula Circuit Court.

"Q. Were you not waiting for another train? A. I presume likely; I do not remember.

"Q. Were you head or rear brakeman? A. I was head brakeman. "Q. Who signaled the man in the cab of the engine to move the train? A. Whoever wanted it moved.

The conductor was gone

"Q. Did you signal him? A. I don't know whether I did or not. "Q. Do you say you did not? A. I don't say I did not; I presume I signaled him.'

""

And the uncertainty of his testimony is illustrated by what follows, on pages 27 and 28:

"Q. Did the fireman start without any signal? A. I don't know; I presume not.

"Q. When it started did it break in two? A. I think not. "Q. Do you say it did not break in two between the two cars where you were afterwards hurt? A. No, I do not say it did not. "The Court: Did you disconnect it there?

"Q. That don't answer my question. and the engineer, you say? A. Yes, sir.

"A. No, sir.

"The Court: Did any one, so far as you know?

"A. No, sir.

"Mr. Hall (resuming):

"Q. Then it broke, didn't it? A. It broke, yes; but it did not break, if I remember right, when we started.

"Q. When did it break? A. It broke when we were backing up. "Q. When? A. When we were doing the switching.

"Q. While the conductor and engineer were gone? A. Yes, sir. "Q. It broke in two and you took measures to couple it, did you? A. Yes, sir."

And so forth. I only read this to illustrate the difficulty of his telling what took place that day. It thus appears from the plaintiff's own testimony that he could not tell what the orders were that were given, and he could not say that anybody was present when they were given.

Redhead; the engineer, swears that no orders were given to him by the conductor, and that the plaintiff was the man who told him what was to be done. Was it proper for the court to tell the jury and leave it to them to determine that if the conductor had directed the fireman to make this coupling at the time he did make it, that if the fireman obeyed those orders precisely as they were made and carelessly and negligently backed up and caused the injury to the plaintiff, that the plaintiff was entitled to recover? In other words, may a court leave to a jury, for the decision of the case, a proposition that is not maintained by the evidence? There is nothing to explain or show that the conductor understood that the fireman was to manage the engine. It seems from the testimony they left the train at different times, not together; but there is nothing in the evidence, even to show that the conductor understood that the fireman was to manage the engine alone, much less giving him direct orders to that effect.

In addition, suppose he did, what then? Does it establish or tend to prove any negligence on the part of the defendant, that an employee shall give direction to some of his subordinates to do a piece of work, and then go off himself and leave him to perform it, and this fellow servant

Railway Co. v. Bixler.

negligently does it and injures another, that the one that is injured may recover? There is nothing stated in regard to any negligence on the part of the conductor, in the order itself, but simply that he gave the orders to the fireman and the fireman carelessly performed the duty and injured the plaintiff and then the defendant is responsible. That is simply saying the employer is responsible to one fellow servant for injuries caused by another.

There might be a case, where the order itself would be negligent, under the circumstances; but no such case is made here. If the order was given to the fireman by the conductor, and the conductor knew the fireman was going to manage the engine, and he was incompetent to do so, then the company might be responsible, because he had directed knowingly an incompetent man to do the work, by which the plaintiff might be and was injured. So then, it it was a rule of the company, that the fireman was not to manage the engine, in the absence of the engineer, and the conductor gave the order to the fireman to do that, knowing he was going to do it in the absence of the engineer, then the company might be responsible, because the conductor then was giving an order forbidden to be given by the rules of the employers; but none of these qualifications are added. If they were made in the evidence none of them were added to the charge. The charge is square, positive and pointed that if the conductor gave the order to the fireman and the fireman was negligent in doing it, the plaintiff is entitled to recover.

There was no evidence that the conductor gave any order to the fireman, and there is no evidence to show that the conductor knew whatever he did order to be done was to be done in the absence of the engiFor these reasons, we think the case will have to be reversed.

neer.

MASTER AND SERVANT-NEGLIGENCE.

[Lorain Circuit Court, October 22, 1898.]

Hale, Caldwell and Marvin, JJ.

* CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY Co. v. CHAS. HUDSON.

1. ERRONEOUS APPLICATION OF RULE.

A general statement in a charge that "according to the rules of the company the train is controlled by the engineer and brakeman, who are fellow servants" would be misleading and erroneous in a case where it appears that the train generally is under the control of the conductor, though for the purpose of management, so far as speed is concerned when running or shutting

Affirmed, without report, 60 Ohio St. 631; application for rehearing denied, December 5, 1889. See 7 Ohio Legal News, 18.

John T. Dye, E. G. Johnson and L. J. Hackney, for plaintiff in error in the Supreme Court, cited:

The court erred in directing the jury not to answer interrogatories as to rules of the plaintiff in error: 91 O. L. 298; Campbell v. Frankem, 65 Ind. 591; Clegg v. Waterbury, 88 Ind. 21; Miller v. School Township, 101 Ind. 503; Weir (City) v. Herbert, 51 Pac. Rep. 582 [6 Kan App. 596]; Wyandotte (City) v. Gibson, 25 Kan. 236; Cleveland, C. C. & St. L. Ry. v. Eggmann, 71 Ill. App. 42; Baltimore & O. Ry. v. Cain, 31 Atl. Rep. 801 [81 Md. 87]; Topeka v. Boutwell, 35 Pac. Rep. 819 [53 Kan. 20; 27 L. R. A. 593]; Zucker v. Karpeles, 50 N. W. Rep. 373 188 Mich. 413]; Peninsular Land Transp. Co. v. Franklin Ins. Co.. 14 S. E. Rep. 237 [35 W. Va. 666].

Rules of employer for the conduct of his business, when brought to the knowledge of the employe, constitute an element of the contract of service: Pennsyl

Lorain Circuit Court.

down, it is almost exclusively under the control of the engineer and brakeman. Such a charge would leave it uncertain in the minds of the jury as to which it would refer, to the general management or to the handling of the train when in motion.

2 CHARGE GOING BEYOND THE EVIDENCE.

A charge, in an action by a brakeman for injuries resulting from being obliged to jump from a freight train to avoid a wreck caused by running into a place where rails had been removed, that "if they negligently suffered the train to go at a high rate of speed on this descending grade the plaintiff cannot recover," would have been unwarranted where there was no evidence to show that the train was running at an unwarranted rate of speed in view of the fact that the persons in charge thereof knew nothing of the danger ahead of them. Such a charge would call for a finding without evidence upon which to base it.

8. CONDUCTOR and Brakeman not Fellow ServANTS.

A charge, in an action for injuries received by a brakeman on a freight train, caused by running into a place where rails had been removed, that "the jury are instructed that the conductor of the train set forth in said petition,

vania Co. v. Whitcomb, 12 N. E. Rep. 380, 385 [111 Ind. 212, 219]; Lake Erie & W. Ry. v. Craig, 9 O. F. D. 589 [80 Fed. Rep. 495]; Atchison, T. & S. F. Ry. v. Reesman, 60 Fed. Rep. 370; Woolsey v. Railway Co., 33 Ohio St. 227, 234.

An employe, with knowledge of the rules of his employer for the conduct of his business, in which the employe acquiesces by remaining in the service, assumes the risk of injuries from the method of business prescribed in such rules and can not recover therefor because another method was not adopted: Naylor v. Railway Co., 11 N. W. Rep. 24 [53 Wis. 661]; Hewitt v. Railway Co, 31 Am. & Eng. R. Cas. 249; Abbot v. McCadden, 51 N. W. Rep 1079 (81 Wis. 363; 29 Am. St. Rep. 910]; Jolly v. Railway Co., 53 N. W. Rep. 526 [93 Mich 370]; Wright v. Railway Co., 25 N. Y. 562; Haskins v. Railway Co., 56 N. Y. 608; Pennsylvania Ry. Co. v. Wachter, 60 Md. 395 [15 Am. & Eng. R. R. Cas 187]; Ladd v. Railway Co., 119 Mass. 412 [20 Am. Rep. 331]; McGrath v. New York, etc., Co., 18 Am & Eng. R. R. Cas. 5; Chicago, etc.. Co. v. Donahue, 75 Ill. 106, 110; Behm v. Armour, 15 N. W. Rep. 806 [58 Wis. 1]; Hobbs v. Stauer, 22 N. W. Rep. 153 [62 Wis. 108]; Larson v. Railway Co., 45 N. W. Rep. 722 [43 Minn. 423]; Bengston v. Railway Co., 50 N. W. Rep. 531 [47 Minn. 486]; Hughes v. Railway Co., 6 N. W. Rep. 553 [27 Minn. 137]; Chicago & N. W. Ry. v. Davis, 53 Fed. Rep. 61; Olson v. Railway Co., 35 N. W. Rep. 866 [29 Minn. 125]; Clark v. St. Paul, etc, Co. (Minn.) 2 A. & E. R. R. Cases, 240; Railway Co. v. Leech, 41 Ohio St. 388, 391; Northwestern Fuel Co. v. Danielson, 57 Fed. Rep. 915, 918; Texas & Pacific Ry. v. Minnick, 61 Fed. Rep. 635; Louisville & N. Ry. v. Kelley, 63 Fed. Rep. 407, 411; Elliott on Railways, n. 4, section 1296; Indianapolis & St. L. Ry. v. Watson, 14 N. E. Rep. 721 [33 Am. &Eng. R. R. Cas. 334; 114 Ind. 20]; Cincinnati, I. St. L. & C. Ry. v. Lang. 118 Ind. 579 [21 N. E. Rep. 317]; Lake Shore & M. S. Ry. v. Knittal, 33 Ohio St. 468; Mad River & L. E. Ry. v. Barber, 5 Ohio St. 541, 563; Feely v. Pearson Cordage Co., 37 N. E. Rep. 368 [161 Mass. 426]; Whalen v. Railway Co., 72 N. W. Rep. 323 [114 Mich. 512]; Richards v. Rough, 18 N. W. Rep. 785 [53 Mich. 212]; Sullivan v. India Mfg. Co., 113 Mass. 396; Fleming v. Railway Co., 6 N. W. Rep. 448 [27 Minn. 111]; Hughes v. Railway Co., 6 N. W. Rep. 553 [27 Minn. 137]; Songstad v. Railway Co., 41 N. W. Rep 755 [5 Dak. 517]; Olson v. McMullen, 24 N. W. Rep. 318 [34 Minn. 94]; Carbine v. Railway Co., 17 Atl. Rep. 491 [61 Vt. 348]; Naylor v. Railway Co., 33 Fed. Rep. 801; Whelton v. Street Ry. Co., 52 N. E. Rep. 1072 [172 Mass. 555].

Reasonableness of the rules of the plaintiff in error, for the control of its servants not a question of fact for the jury and the court erred in submitting that question to the jury: Woolsey v. Railway Co., 33 Ohio St. 227, 232; Larow v. Railway Co., 15 N. Y. S. 384 [61 Hun. 11]; South Florida Ry. v. Rhodes, 5 So. Rep. 633 [25 Fla. 40]; Vedder v. Fellows, 20 N. Y. 126; Railroad v. Fleming, 14 Lea (Tenn.), 128; Pierce v. Randolph, 12 Texas, 290; Treacy v. New York, etc., Co., 9 Bos. (N. Y.) 396; Tullis v. Hassell, 54 N. Y. Sup. Ct. 391; Railroad v. Whittemore, 43 Ill. 420; Chicago v. Railroad Co., 84 111. 109; Pittsburgh, C. & St. L. Ry. v. Nuzum, 50 Ind. 141 [19 Am. Rep. 703]; Fertich v. Michener, 11 N. E. Rep. 605 [111 Ind. 472; 60 Am. Rep. 709]; Hoffbauer v. Railway Co., 3 N. W. Rep. 121 (52 Ia. 342]; Old Colony Ry. v. Tripp, 33 Am. & Eng. R. R. Čas. 488.

The contributory negligence of the defendant in error, in failing to comply with the rule of the company requiring brakeman to control the speed of trains

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