Railway Co. v. Hudson.

while said train was descending the grade mentioned in the petition, and after signal had been given by the engineer to stop the train, and while he was engaged in attempting to stop the train, was a fellow servant of the plaintiff," whose negligence would defeat his recovery, does not correctly state the law. Conductors are not fellow servants of, but are the superiors of brakemen on the same train.

4. INCOMPLEte Charge as to Contributory NegLIGENCE.

It would be improper for a trial judge to charge that a railroad company is not liable for injuries "sustained in whole or in part by the negligence of a fellow servant." If an injury occurs by reason of the negligence of a fellow servant and the master combined, the master may be liable, and if the charge is intended to apply to the combined negligence of the plaintiff and a fellow servant, it should be so stated.

6. SUFFICIENT RECOGNITION OF RIGHT to Make Rules.

Where the court instructs the jury to the effect that the rule of a railroad company required a brakeman to be on top of the train, and that if he was not there and by reason of the violation of such rule he was injured, he cannot recover, this sufficiently recognizes the right of the railway company to make rules for the government of its employes and the necessity of obeying them, without embodying it again in a special request.

6. CONTRACTING AGAINST NEGLIGENCE, ILLEGAL.

A railway company is a public corporation and when it undertakes to make a contract that will exonerate it from negligence, whether that negligence con

upon descending grades, should have defeated the defendant in error: Bennett v. Railway Co., 49 N. W. Rep. 408 [2 N. Dak. 112]; Crew v. Railway Co., 20 Fed. Rep. 87; Wilson v. Railway Co., 53 N. W. Rep. 797 [94 Mich. 20]; Brennan v. Railway Co., 53 N. W. Rep. 358 [93 Mich. 156]; Penna. Co. v. Whitcomb 12 N. E. Rep. 380 [111 Ind. 212]; International, etc., Co. v. Gray, 27 Am. & Eng. R. Cas. 318; Gordy v. Railway Co., 23 Atl. Rep. 607 [75 Md. 297]; San Antonio & A. P. Ry. v. Wallace, 13 S. W. Rep. 565 [76 Tex. 636]; Lacroy v. Railway Co., 30 N. E. Rep., 391 [132 N. Y. 570]; Overby v. Railway Co., 16 S. E. Rep., 813 [39 W. Va. 524]; Louisville & N. Ry. v. Watson, 8 So. Rep. 249 [90 Ala. 68].

The court will look into the record and determine whether there is any evidence tending to support the issues: Ford v. Osborne, 45 Ohio St. 3 [12 N. E. Rep. 526]; Dick v. Railway Co., 38 Ohio St. 392; Railway Co. v. Murphy, 50 Ohio St. 135, 142 [33 N. E. Rep. 403].

Brief on petition for rehearing:

The Cleveland, Cincinnati, Chicago and St. Louis Railway Company respectfully prays the court to grant a rehearing in this case for the following reasons: 1. The court gave to the jury the request of defendant in error, No. 12 (Record, page 212):

"Twelfth. Gentlemen, it is for you to say, under all the rules that have been introduced by the plaintiff and the defendant, and under all the evidence and circumstances, taking into consideration, as I have said, the descending grade, the cut, the condition of the rails, time of day, kind of train and rate of speed, whether the defendant gave timely, proper and sufficient notice or signal to insure the safety of this train."

This instruction leaves it for the jury to say whether timely, proper and sufficient notice or signal was given to insure the safety of this train, under all the evidence and circumstances, taking into consideration the descending grade, the cut, the condition of the rails, time of day, kind of train, and rate of speed.

This was equivalent to an instruction to the jury to return a verdict for defendant in error.

The verdict is made to depend upon the question as to "Whether defendant, under all the evidence and circumstances, gave timely, proper and sufficient notice or signal to insure the safety of this train."

Of course, if a wreck ensued, the company, under this instruction, is liable. There is no law in the state of Ohio or elsewhere which requires a company engaged in repairing its track to insure the safety of its trains.

Railroad companies are responsible to their employes for failure to exercise diligence and care. They are not insurers.

Under this instruction a brakeman, who has been injured in a wreck where the track has been taken up for repairs, may recover against the company if the notice to the train crew that the track was taken up was not sufficient under all the cir

Lorain Circuit Court.

sists in unsuitable rules or in other matters, it is against public policy. It is, therefore, for the jury to say in such case whether the railway company was guilty of negligence or not. The mere fact that it complied with established rules will not relieve it from liability.

7. VIOLATION of Rules Does not Defeat Recovery,

WHEN.

A party, to be defeated by his own negligence, must, in some way, have contributed to his own injury. Therefore, the mere fact that a railroad employe violated the rules of the company, in riding in the engine instead of on the cars, need not defeat his recovery, if, had he performed his whole duty, the same results would have followed.

8. TESTIMONY OF EMPLOYE AS TO RULES.

The testimony of a brakeman that he did not know of any rule of the railway company requiring him to ride at a certain place on the train, cannot be regarded as prejudicial error where it appears that the book, containing the rule, was subsequently placed before the jury.

9. Trial Judge Need not Construe Rules, When.

Where several rules of a railway company, relative to the management of trains, are introduced in evidence, some by one party and some by another, and the meaning is not questioned, the trial judge is not called upon to construe them or to tell the jury what the rules of the company are.

cumstances to insure the safety of the train, and this although the proximate cause of the wreck may have been, as we insist it was in this case, the negligence of the brakeman injured.

This rule not only makes the company liable as an insurer, but as an insurer against the negligence of the party injured.

We modestly submit that this is not the law.

The defendant in error calls attention to the instruction of the court on page 225 of the record (see brief of defendant in error, p. 55), where the court said: "I say to you as a matter of law, that in the absence of a contract, the master is not in any sense the insurer of the safety of its servants."

"There is a wide difference," say counsel, "between insuring the safety of an employe from receiving injuries and insuring the safety of its train. Had the rules been complied with on the part of the company there could have been no question as to the safety of the trains."

In this case the defendant in error jumped from the train to escape injury from impending wreck. The contention is that the company was bound to give such notice as would insure him against this wreck under the particular circumstances of this particular train. Among the circumstances may have been, as plaintiff in error contends, the negligence of the defendant in error in not being at his post of duty, and in not exercising diligence to control the train on the descending grade as required by the rules. By this instruction the company is an insurer against the consequences of the negligence of defendant in error.

Besides these two instructions: 1. That the company must give sufficient notice to insure the safety of the train, notwithstanding the speed and the fact that the brakemen were not at their posts of duty, and did not use diligence to control the train, is inconsistent with the charge, on page 225, that the master, in the absence of contract, is not an insurer of its servants.

"The giving of instructions which are inconsistent with or contradictory to each other is error for the reason the jury will be as likely to follow the good as the bad, and it can never be known which they have followed; and which way soever they go, if there is an appeal or writ of error, the judgment must be reversed." Thompson on Trials, Sec. 2326, citing many cases, including Pittsburgh, etc., R. Co. v. Krouse, 30 Ohio St. 222-240.

The court charged generally that the company is not, in the absence of a contract, an insurer of the safety of its servants.

A contract made by any party, master or servant, relieving it from liability for its own negligence, is void.

Besides, there was no such contract in this case.

It is contended by defendant in error that this instruction is authorized under Rule 290, which is as follows (defendant's brief, p. 10):

"290. Whenever it is necessary to remove or replace a rail in the track, or to repair a bridge, culvert, cattle-guard, or structure, or in the event of any cause by which the track is rendered unsafe for the passage of trains, danger signals, red, and torpedoes must be placed fifteen hundred yards, thirty telegraph poles, in each

Railway Co. v. Hudson.

10. JURY TO Determine WhiCH RULES APPLY.

Where several rules of a railway company, relative to the management of its trains, are introduced in evidence, some by one party and some by another, it is for the jury to determine from the facts which rules apply.

11. EVIDENCE-EXPERIMENTING WITH SIMILAR Train.

Evidence, in an action for personal injuries, in the nature of the results of an experiment with the same kind of a train at the same place and with a similar crew, is not demonstrative or controlling evidence, particularly where the conditions are not exactly the same. In case at bar, the cases were distinguished by the fact that when the accident occurred the track was wet and slippery and the men were not anticipating the necessity of stopping. In the experiment, the track was not in the same condition and the crew anticipated duties to be performed.

12. JURY NEED NOT FIND As to Conceded Facts.

Where there is no evidence to the contrary as to a fact, and the parties have agreed in the trial of the case orally that it is the rule of the company, or that a certain fact exists in the case, a party has no ground of complaint if the court says to the jury that they need not find on that question because the rule is in, or the fact is conceded, and the parties know what it is.

13. Failure to Answer all Questions.

The fact that some questions submitted to the jury were not answered, is not ground for reversal where there is no evidence in the record upon which the jury could make findings thereon, or if the answers had been made it would not have affected the verdict because the point was not in issue.

direction from the point of danger. A man must remain with the signals until the track is clear, and in case a curve or the summit of a grade is near the point of fifteen hundred yards, the signals must be sent farther to insure safety."

This rule contains the language, "In case a curve or the summit of a grade is near the point of fifteen hundred yards, the signals must be sent further to insure safety."

The element of a curve or summit of a grade near the point of fifteen hundred yards is omitted in the instruction, and the evidence shows clearly, without the slightest contradiction, that there was no curve or summit of a grade near the point of fifteen hundred yards from the place where the track was taken up.

Rule 99 is as follows:

"When the train is stopped by an accident or obstruction, the flagman must go back with danger signals to stop any train moving in the same direction. At the fifteenth telegraph pole from the rear of his train he must place one torpedo on the rail; he must then continue to go back to the thirteenth telegraph pole from the rear of his train and place two torpedoes on the rail, ten yards apart (one rail length)." (Record, p. 239.)

Rule 99a is as follows:

"On descending grades, or other hazardous points on the road, the flagman must go back as much farther than required by Rule 99 as will insure safety."

Rule 99a is a supplement to and a part of Rule 99, and it is limited to a case where a train is stopped by an accident or obstruction. It has no application to the present case.

But even if 99a applied to the present case, it must receive a fair construction. It can not be so tortured and stretched as to mean that a flagman must go so far back as to insure the safety of the train under all the circumstances of the particu lar case. He can not know whether the brakemen are at their posts of duty. He can not know whether they will act promptly and diligently after the signal is given He can not know whether they have discharged their duty in controlling the speed of the train, under the rule, on a descending grade, nor can he know what the speed of the train is until it reaches him.

This instruction seems so clearly erroneous that, without waiving the other reasons upon which we insist in our brief that the case should be reversed, we forbear to press them in this petition for rehearing.

We were entitled to a trial in the common pleas court according to the rules of law. It is not the law that a railroad company engaged in repairing its track must give notice to an approaching train sufficient to insure its safety. The company, or its agent, giving the notice could never know the speed of the train or the degree of care which the train crew used to control the speed of the train in advance, nor whether the brakemen were at their posts of duty, nor whether the crew would

Lorain Circuit Court.

Skiles & Skiles and A. R. Webber, for defendant in error.

HEARD ON ERROR.

CALDWELL, J.

Charles Hudson was injured while a brakeman upon one of the defendant's cars. The case as it stands in this court is the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, plaintiff in error, against Charles Hudson, defendant in error. Charles Hudson brought his action to recover damages for injuries he sustained while acting as brakeman upon one of the defendant's trains. And in his petition he avers that the railroad company was taking out portion of its track to repair rails and putting in new rails, and that it negligently performed that duty and that work, and failed to give to the serva ts proper notice. It says it was negligent in that it did this without any notice, knowledge, proper or timely warning of any kind to plaintiff or employes in charge of train No. 96.

The allegations of the petition then are that the company in doing this work was guilty of negligence in the manner and way in which it did it, and really the negligence amounts to the fact that the company was negligent in not giving timely warning to the approaching train, No. 96, of the dangerous condition of its road.

The de'endant below, in its answer, says that the plaintiff was the author of his own injury in this language: "That the injury complained of in the petition was caused by the negligence of plaintiff himself, by failing to be at his post when the signal was given to apply brakes, as required by signal of the engineer, and by jumping from the car which was not derailed." In other words the company says that he was guilty of negligence by not being at the brakes when the signal for brakes was given, and by not setting the brakes as diligently as he should have done, and the case reveals that that is the same as the first. And third, that he was guilty of contributory negligence in jumping from the car at the time he did.

The facts of the case very briefly stated are about these: That the railroad company near Wellington, in this state, took up a number of rails from its track and was placing new rails. A signal was placed

exercise diligence to bring the same to a stop after the signal was given; and yet the court instructed this jury that they were to determine, from all the circumstances, whether a notice was given sufficient to insure the safety of the train. If the company was bound to insure the safety of the train, the only thing that was necessary for defendant to prove was that the train was wrecked.

The question upon which plaintiff in error insisted that the negligence of defendant was the proximate cause of the accident is wholly omitted. The jury were at liberty under this charge to find that the notice required by the rules of the company to be given in a case of this kind is not sufficient. They are made judges of the reasonableness of the rules.

This error is not cured by any instruction given by the court, and, as we have shown, the fact that this instruction may be inconsistent with other instructions given by the court does not help the case, because this court can not tell which of two inconsistent instructions the jury followed.

The rules of the company did not constitute a contract with Hudson to insure the safety of the train against his own negligence, and even if such contract had been made, it would be against public policy and void.

We are at a loss to understand upon what grounds this charge can be sustained. No sufficient reason is suggested in the brief of defendant in error. No opinion was rendered by this court in the case.

We respectfully but earnestly pray for a rehearing in order that there may be a fair trial of this case according to law, and that a precedent may not be set which will trouble this court in the future.

Railway Co. v. Hudson.

about a mile and one-third west of the point where the rails were tak n up. This train, No. 96, was approaching from the west on the track; it was a misty, moist day, so that the track was moist. As the train approached, and for some little time before, Hudson, this brakeman, had been riding upon the engine; he and the engineer both saw a man ahead as they approached within near this mile and one-third; they saw a man upon the track; the engineer at once shut off steam; the brakeman started to go back over the tender and over the cars to the point where he was expected to set brakes. When the engineer approached the man on the track he received a signal which caused him to apply the brakes to the three cars next to the engine and tender; they had brakes that were operated by the engineer; he blew the whistle for brakes, for the hand brakes on the train. The train was made up of about fifty-two cars, perhaps, if I remember the number right; nearly all of them loaded cars; very few empty ones.

The three cars next to the engine and tender had air brakes, which were operated and the brakes were set on those three cars by the engineer; the fourth car back of the engine and tender was a house car on which there were brakes; the fifth car was an oil tank car, and then after that house cars.

The evidence shows that there were in charge of this train the engineer and his fireman, two brakemen and a conductor. It seems from the evidence that at the time of the approach, the time the man was seen upon the track who afterwards gave the signal to stop, the brakemen, one of them, Hudson, was in the engine and the other brakeman was in the caboose, and when the signal to stop was given and the whistle blew there were some brakes set; just how many it does not clearly appear. The engineer applied sand to the track and reversed his engine, set the air brakes and the train failed to stop before the place was reached where the track was up; the engine went over it on to the track beyond and the cars were piled up in a promiscuous manner, and the brakeman, after he saw that the cars in front of him were going to pieces, leaped from his car and received very severe injuries.

In trying this case it seems to have been very warmly contested. A number of questions are brought to this court, claiming that the court below erred as against the railroad company, and I will notice a number of these; it is impossible at this time to notice all of them, there are so many in this record, but I will try to cover the part upon which those that I do not notice depend. There are many of these complaints that pertain to the same questions of law that arise in a different form simply, in different parts of the record, and by noticing one of them it will be sufficient for all.

I will first notice the complaint on behalf of the railroad company in regard to the refusal to charge as requested by the defendant below. The first is request seven. The court gave that request (it was a lengthy one) in part and refused it in part. The part refused was this:

"According to the rules of the company the train is controlled by the engineer and brakemen, who are tellow servants, and if the plaintiff and his fellow servants, the engineer and brakemen, negligently suffered the train to go at a high rate of speed on this descending grade, the plaintiff cannot recover from the defendant on this ground."

In the first place that request would be misleading, in saying that the train is controlled by the engineer and brakemen. The train is under the control, according to the evidence in this case, of the con