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Lorain Circuit Court.

ductor. But for the management of it, so far as speed is concerned when running or the shutting of the train down when running, is a matter that is almost exclusively under the control of the engineer and brakemen. Now this charge would leave it uncertain in the minds of the jury as to which it would refer, to the general management of the train or to the handling of the train when in motion, and the tendency of it would have been to mislead.

And then the charge says, "If they negligently suffered the train to go at a high rate of speed on this descending grade, the plaintiff cannot recover from the defendants on this ground.

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That is calling for the jury to make a finding that I find no evidence in this record for them to find upon. That at the time the signal was received to stop the train by the person who had been on the track giving that signal, and by a torpedo, if one was exploded, the evidence is a little contradictory on that. There is no evidence to show that the train was then running at an unwarranted rate of speed, considering the fact that the persons in charge of the train knew nothing of the danger that was ahead of them. And hence the charge calls for a finding of fact that the jury had no evidence upon which to find it. We find there is no error in that.

There is a complaint made because request number nine was not given. Number nine recites three rules of the company, the three rules on which the railroad company depended largely in this action. And then it says:

"I charge you that under these rules the crew in charge of train No. 96, upon which plaintiff was brakeman, were bound to look out for signals to stop, at a distance of thirty telegraph poles from the point where a track might be obstructed or where a train might be delayed, or where a work train might be engaged at work; and if they permitted the train to run (under the conditions which existed), at such a rate of speed that it could not be stopped in a distance of thirty telegraph poles, they assumed the risk of any danger or accident that might result from the failure to have the train under such control that it could, by reasonable diligence, have been stopped within thirty telegraph poles."

In other words, this charge means simply this, that one of the rules recited was, that the company, in taking up the rails and doing certain other things, are to place a signal and leave a man with that signal thirty telegraph poles from the point at which the work is being done, and that the company and that the men on the train must all the while run their train in anticipation that the company may be doing such work, and if they do not keep that under such control that they can stop it in that distance of thirty telegraph poles, that they are guilty of negligence and cannot recover.

The trouble with this charge, taken as a whole, one trouble is, that these different rules of the company have been put in evidence, both parties put them in; some of the rules were put in by the plaintiff below and some by the defendant; there was no question about their being the rules of the company, no question at all as to what they meant, and the court was not called upon to construe any of them. But the question argued below on those rules was this, which rule of two given and put in evidence applied to this particular case? The plaintiff below claimed that in a repair of this kind, where a number of rails were to be taken up, it was the duty of the railroad company to give notice to the superintendent of the road. That was for some purpose as they claim, and a

Railway Co. v. Hudson.

reasonable purpose of that notice would be that he might notify the persons in charge of this train at or near the last station where they stopped, that they might be aware of the obstruction on the track.

And another rule put in by the plaintiff below was to the effect that under such circumstances as the plaintiff claimed existed in this case, that a much longer distance must be provided for between the point of danger and the point where the train should be signaled. Now, this recites a rule that the railroad company depended upon, that one pertaining to thirty telegraph poles, and then stated to the jury, "now it you find that this train was running under these conditions, that the men must all the while keep their train within such control that they could stop it within thirty telegraph poles," it seems the very thing the jury were to find, which rule applied to this case.

And then it is in language that it is hardly proper. "And it they permitted the train to run under those conditions which existed."

I do not think it is very proper to put in that. The court must state and leave to the jury to find what the conditions are. The jury might find one set of conditions and the judge might have his mind upon another set of conditions, and that is hardly a proper way to instruct a jury. The proper way is to tell the jury as to certain questions of fact, and then say to them if you find these facts so and so, then I say to you the law you shall apply will be so and so.

The next complaint is in regard to request number fourteen.

"The jury are instructed that if they find that the plaintiff, as front brazeman, and Tim Saxton, as rear brakeman, on the train in question, or either of them, in violation of the rules of defendant company, neglected to be upon the top of the train in question while it was descending the grade in question, and that they or either of them neglected to use ordinary care and vigilance in setting brakes to aid the engineer in reducing the speed of the train, so that plaintiff might have sately alighted therefrom before the derailment, or that a derailment of said train would not have caused plaintiff injury, plaintiff cannot recover in this case and your verdict should be for the defendant."

I think that the court took care of that part of the law of this case very properly and much better than it is here stated, and that in view of the charge of the court the party has no ground of complaint because that request was not given.

Request number fifteen on the same page. "It was the duty of the defendant company to ordain and establish reasonable rules and regulations for the government of its employes, and if you find that the defendant company had ordained and established a code of rules and regulations for the government of its employes, and that the plaintiff entered into and remained in the service of the defendant with a knowledge of such rules and regulations, he must be held to have acquiesced therein and agreed thereto, and he can not in this case raise an issue as to the reasonableness and sufficiency of such rules and regulations."'

I do not understand that any question was raised as to the reasonableness of the rules in the evidence. What was done in argument from time to time I do not know, but we think the court charged properly in regard to the rules of the company, when it said that if this rule existed, that the brakeman should be upon the top of the car at the time that he was in the engine, and if by reason of his not being where he should be this injury occurred to him, he cannot recover. It is stated much more at length in the charge and we think properly.

Lorain Circuit Court.

Request number sixteen. "The jury are instructed that if they find that the plaintiff entered and remained in the service of the defendant company with full knowledge of the rules and regulations prescribed and established by said company relating to the duty of brakemen to be upon the top of their trains when descending heavy grades, and with full knowledge of the requirements of the rules so prescribed, that in case the railway track of defendant company should be in any way obstructed, that a flagman should be sent back thirty telegraph poles to warn an approaching train of danger by exhibiting a signal of danger, and by placing a torpedo upon the track, he cannot in this case complain that other rules and regulations were not made by defendant company providing for other and additional notice in such a case."

The charge seems that the rule providing for a signal to be given at thirty telegraph poles is the only one that controls in this case and I do not think the court had a right to say that.

Request number seventeen. "The jury are instructed that the defendant company had a right to prescribe as a rule of said company for the government of plaintiff and its other employes, that in descending heavy grades, brakemen upon freight trains should be upon the top of said trains, and if you find that plaintiff with the full knowledge of said rule, at the time of his injury and while the train upon which he was brakeman was descending a heavy grade between Rochester and Wellington, in disregard of such rule so prescribed by said company remained in the cab of the engine instead of upon the top of said train as prescribed by said rule, he must be held to have voluntarily assumed the risk of injury to himself caused in whole or in part by his disobedience of such rule."

Now the court in its charge has given that in better language. The court said to the jury that if a rule required him to be on top of the car and he was not there, and it the injury occurred by reason of his violation of the rule, that then he cannot recover. Briefly stated that is the charge of the court.

The eighteenth request is complained of. "The jury are instructed that Tim Saxton, the rear brakeman upon the train in question, was a fellow servant of plaintiff, and plaintiff cannot recover against defendant in this case it the negligence of said rear brakeman in whole or in part caused the injury to the plaintiff set forth in the petition."

That would not be the rule of law. If the injury occurred by reason of Saxton's negligence and that of the company combined, he still could recover. The brief in this case treats this as if the court meant to say, by not giving it, that it Saxton's negligence contributed with that of the plaintiff below then he stilì can recover. Now if the request meant to cover that kind of a case it ought to have stated it, but it is general, that he cannot recover in this case of the negligence of said rear brakeman in whole or in part. Now it was correct if you take it in whole, if you leave out the "in part," and the court covered that completely by his charge. But when you say "in part," that part may have been done by the railroad company, and if the fellow servant and the principal both acting together caused the injury the company is still liable.

The nineteenth request is complained of. "The jury are instructed that conductor John Kelley in charge of the train set forth in the petition, 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

Railway Co. v. Hudson.

servant of plaintiff, and if the negligence of said conductor in whole or in part, after the signal was given and while engaged in attempting to stop the train, caused the injury to the plaintif, plaintiff cannot recover in this case and your verdict should be for the defendant."

There is no part of that right. Kelley, the evidence shows, was the conductor of the train, and as such he was superior to the brakeman. That has been held in this state, and in principle is so again, and subject to the same remarks that I have made to the last request.

I think that I have covered substantially all the groundwork of the complaints in regard to these requests. I have looked them all over carefully, and I think in the requests that I have considered all other requests are answered in what I have said as to them.

A complaint is made in this case because the court did not tell the jury what the rules of the company were, that it did not submit to the jury to find what the rules of the company were and that was error. Now as I have already stated those rules were put in by both parties, they were taken from the book called "Rule Book;" there was evidence undisputed, in tact almost conceded in the case you may say, that those were the rules in operation at the time that the plaintiff below received his injury; in fact the plaintiff himselt testified to it as being true; he testifies that he had a book of those rules in his possession, and there is no question made by the plaintiff below but that he knew what the rules were; now that being true, there was no question made as to the construction of the rules of the company, put in as such. There was no need of the court telling the jury that they were the rules of the company, no occasion for it; there was no occasion for the jury to find that they were the rules of the company.

An attempt had been made, that is, the plaintiff below undertook to offer testimony that this rule as to riding in the engine had been abrogated, had been set aside and abandoned, and that the brakemen were permitted to ride upon the engine with the knowledge and approval, if not verbal approval, by consent by not objecting on the part of the officers of the railroad company, and the court excluded it in every instance, and the plaintif below made no headway at all in getting any evidence of that character before the jury. There was probably some talk, but we have noticed carefully what the court said at the different times, and we do not believe that the jury could have been misled in such a way that it became necessary for the court to say to them what the rules were, nor were they called upon to say what the rules

were.

And right here I may say that complaint is made because the rules were written out one at a time and submitted to the jury to find in their special verdict if such rule, stating it, was a rule of the company. 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, and 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 and they admit that it is in writing, and the parties know what it is.

Now a certain request was made and complaint is also made of the charge as to this point, that if the railroad was doing this work exactly as was provided by the rules of the company for its doing it; leave out now the question as to what rule would apply to this particular work. We then take it as an admitted fact that the railroad company were

Lorain Circuit Court.

doing this exactly according to the rules, and that this plaintiff below knew those rules; he knew how it would be done; that he cannot complain because the rule was not sufficient to protect him, now that is the substance of the complaint that is made. In other words, that if the rules are lived up to by the railroad company it is exonerated from any damages by reason of injury.

We do not understand that to be the law. The rules of the company when it employs a man in its service become a part of the contract between them, they at once make the servant to understand what the rules are, and his going to work is an agreement on his part that he will comply with the rules; and if he fails to comply and is injured by reason of such failure, he cannot recover. But ow is it with the railroad company; it makes these rules; the brakemen don't make them; the employes don't make the rules; have nothing to do with them; but it is claimed that when an employe goes to work under them he assumes the risk that may be incurred under those rules.

Now, as I say, the rules become a part of the contract, and it is the public policy of this state, as well as all states nearly, if not entirely all, that a company cannot contract so as to exonerate itself from negligence, and it is put on the ground of public policy; a railroad company is a public corporation, under the control of the state, in all of its affairs, so far as the public interest is in those affairs; and when a railroad undertakes to make a contract that shall exonerate it from its negligence, whether that negligence consists in making a rule that is unsuitable to properly protect the employes or strangers or persons who are riding upon their trains, it is against public policy to exonerate the company, and therefore the court took the right view of this matter, in the charge, and left it to the jury to say whether or not the railroad company was guilty of negligence in doing its work as it did; and whether it complied with the rule, or whether it did not comply, makes no difference, and we believe that is the correct law of this case pertaining to that question.

Complaint is made because some of the questions submitted to the jury were not answered, and we have looked at these questions and examined the evidence with reference to them, and we find that all the questions in which the jury stated they did not know, or there was no evidence, or answered in any such manner, that we are unable to find anything that would warrant the jury, in most of the cases, no evidence whatever or any offers of evidence, that would warrant a jury in making a finding. For instance, whether the defendant in error was not in the cab of the engine from the time the train left New London until it reached the point where the signal was given to apply brakes by the engineer, whether they answered that yes or no would make no differ ence; he was in the engine and the jury have so found at the time they saw a man ahead on the track; and he and the engineer saw that man about the same time, and he started at once to go up to his brakes; and after the engineer saw that the man was giving him a signal then he applied his brakes and did all he could to stop the train. Whether he was on all that distance or not is not an important fact in the case at all, not a controlling fact.

If the defendant below had complained in its answer that he contributed to his own injury by not being on top of this train and controling or slackening its speed before this time, there might be some importance in it, but the railroad company has made no such complaint of him,

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