Railway Co. v. Westenhuber.

position where he was earning large wages, and was put to great expense for nursing, medicines and medical attendance.

"Plaintiff further says that the injuries so sustained by him are permanent. That he cannot now undergo severe labor, causing him great loss in his earning capacity; and he has suffered and will continue to suffer great mental and physical pain and anguish.

"All to plaintiff's great damage, to-wit, $10,000.

"Wherefore plaintiff prays judgment against the defendant in the sum of $10,000 and costs.'

So that it will be seen that he has set forth that he has been put to great expense for nursing, medicines and medical attendance; but he does not set forth the precise amount of expense for either of these items or for all of them, but the expense for the nursing, medicines and medical attendance, and for all other damages which he says has resulted to him, is put at $10,000.

We think that, in the absence of a motion to make more definite and certain, this is a pleading that authorized evidence of the amount of expense incurred or the amount expended for medical attendance and medicines.

It is said that the court erred in its charge to the jury in leaving all questions of damage to their determination without reference to the evidence, and this is urged particularly with reference to the medical attendance. We do not think that that criticism is well founded. The court said to the jury that they must be guided by the evidence. To be sure, when it comes to a particular paragraph in which he speaks of the damage, there is a somewhat loose utterance upon that subject; but we do not think that would be misunderstood by the jury, or that they would understand that they would be at liberty to conjecture what the medical attendance or medicines amounted to, but rather that they would be guided by what the court had in the first instance said to them with respect to their being bound by the evidence.

Finding no error in this record, the judgment of the court of common pleas will be affirmed.

NEGLIGENCE-FELLOW SERVANTS.

[Lucas Circuit Court.]

Haynes, Parker and Hull, JJ.

LAKE SHORE & MICHIGAN SOUTHERN Ry Co. v. PERO, Admx.

SWITCH TENder not Fellow Servant of Engineer and FIREMAN.

A switch tender, employed in a railroad yard, whose duty is to open and close such switches as notified by the different conductors and engineers, is not a fellow servant of the conductor and engineer of a yard engine within the meaning of Secs. 3365-22, Rev. Stat., notwithstanding the conductor, engineer, and switch tender are controlled by the yardmaster. The railroad company is, therefore, liable for the negligence of such conductor or engineer by reason of which the switch tender is injured.

HEARD ON ERROR.

E. D. Potter, for plaintiff in error.

Hurd, Brumback & Thatcher, for defendant in error.

Lucas Circuit Court.

HAYNES, J.

This case is submitted to us upon petition in error and practically upon a single question. George H. Pero was a switchman in the employ of the Lake Shore Railway Company, and worked in Toledo in what they call the "Western Yard." His duty was to attend to quite a large number of switches in the yard. There was at work upon that yard a yard engine, which was manned by a conductor, one or two helpers, and also by an engineer and fireman. In the early morning of

a certain day, while these parties were engaged in their respective duties, it was desired to let out a road engine with a train from one of the side tracks, and a signal was given by the conductor of the yard engine to the switchman to open a certain switch and let the train out. Pero proceeded to do this, and in doing it he had to step into a space between the track on which the engine was to pass out and another track. West of this point where he stood was this yard engine, distant about eighty or ninety feet, that was standing at that point at the time the conductor gave the signal to Pero to open the switch for the road engine. Pero proceeded to perform his duty and he opened the switch and the road engine proceeded on its way out, going westward. It necessarily passed immediately by Pero and was at that time emitting steam from the cylinders at the sides of the engine. At about the same time the yard engine proceeded to back down upon a side track immediately by where Pero was standing, and as the road engine passed out Pero stepped back a step or so, and that brought him upon the track upon which the yard engine was proceeding easterly, so that he was in that position; one engine going west and the other engine coming east. The conductor neglected to give any notice to Pero that the locomotive was coming, nor did the engineer of the yard engine give any signals by whistling. There was on the yard engine a light at each end. As the yard engine came down it ran over Pero and he was killed. The yard engine, its conductor, engineer and men, were practically under the general control of the yardmaster though not hired by him, as was also Pero, the switch tender, and it is contended here on the evidence, that these parties, the conductor, the engineer, the men on the yard engine and Pero, were men in a common employment and that the negligence of either the engineer or of the conductor, was the negligence of a fellow servant for which the railroad company would not be liable, and this is the question submitted to us.

It appears here that the switchman in the performance of his duty was to open such switches as he was notified to open by the different conductors and engineers; largely, of course, by the conductors and engineers upon the yard engines which were at work there, and were passing frequently. Beyond that, it is claimed that he was not under the control or charge of the conductor of the switching engine at all.

The statute that is brought in question, Sec. 3365-22, Rev. Stat., it will be remembered, was an act passed April 2, 1890, 87 O. L., 149. The particular part applicable to this case is found in the third section:

"Section 3. That in all actions against the railroad company for personal injury to or death resulting from personal injury, of any person, while in the employ of such company, arising from the negligence of such company or any of its officers or employes, it shall be held in addition to the liability now existing by law, that every person in the employ of such company, actually having power or authority to direct

Railroad Co. v. Pero.

or control any other employe of such company, is not the fellow servant, but superior of such other employe."

That is one class; and the next is:

"Also that every person in the employ of such company having charge or control of employes in any separate branch or department, shall be held to be the superior and not fellow servant of employes in any other branch or department who have no power to direct or control in the branch or department in which they are employed."

It is claimed here, on behalf of the railway company that these men were employed in a common department and that therefore they were fellow servants.

We think it is only necessary to refer to the case of railroad company v. Margrat, 51 Ohio St., 130 [37 N. E. Rep., 11], to find a solution of the question arising in this case. That case went up from this court and was the first case that we had under that statute. The accident occurred at Deshler, where the locomotive and cars of a certain train had come into Deshler and had been backed around on a " Y," leading to the Baltimore & Ohio railroad, and it became necessary to uncouple some cars. The "Y" was almost parallel with the Dayton & Michigan railroad track, and very near it. Margrat was a brakeman upon that freight train, and he started to go to the rear of the train for the purpose of uncoupling the cars; but, it being in the winter season and icy between the tracks, he was a little fearful that he might slip if he walked alongside of his train and therefore he undertook to walk upon the side of the track, beingthe adjoining track of the Dayton & Michigan railroad. And, as he started on this duty, there was a locomotive coming down from a branch of the Dayton & Michigan railraod that led over to Findlay, I think, was coming north and running along rather briskly, and it caught up with Margrat and ran over him and injured him.

It was contended in that case that Margrat and the engineer of the locomotive belonged to the same department of labor, the operating department, I think they called it; but, after a full discussion of the question, and with some doubts about the matter, we held that this classification did not hold with these parties, but that Margrat belonged to a separate class from the engineer.

We further held that the engineer of the locomotive came under the classification of "A person in the employ of the company having charge or control of employes in any separate branch, or department" and we held that the engineer had charge of and control of the fireman of the locomotive; that he came within the class mentioned in the last clause and that the company was held liable for his negligence if negligence had been committed in injuring Margrat. That case went to the Supreme Court and the judgment of this court was affirmed. There was quite a full discussion of the question by the judge delivering the opinion. This is the syllabus of the case:

"An engineer in charge of a locomotive on one train of cars of a railroad company, is in a branch or department of its service separate from that of a brakeman on another train of the same company, within the meaning of the terms 'separate branch or department,' as those terms are employed in section 3 of the act of April 1, 1890, 87 Ohio Laws, 150.

Lucas Circuit Court.

"An engineer in charge of a locomotive, who has authority to direct or control a fireman serving on the same locomotive, is a superior within the meaning of the above-named section.

"Whether an engineer, or other employe, of a railroad company, has authority to direct or control other employes of the same company, is a question of fact to be determined in each case. This may be done, however, either by proof of express authority, or by showing the exercise of such authority to be customary, or according to the usual course of conducting the business of the particular company interested, or of railroad companies generally."

I may say that that question was fully discussed by Judge Bradbury and the syllabus is the result of his decision, and without reading the decision itself, which is somewhat lengthy, we must say that we conclude that within the rule laid down in that case, Mr. Pero was acting in a separate branch or department of the service of the company from that in which the conductor and engineer of the yard engine was acting.

If he was in the same branch of the service as the conductor and engineer then he would be subject to the orders of the conductor, and if he was injured in respect to any orders given by the conductor or in respect to any negligence on the part of the conductor, he would fall within the first definition of this portion of the act. If he, however, stands in the position of being in a separate department and the conductor has the charge of men uuder him (as he, undoubtedly, did have in this case, so far as the men on the engine and the helpers were concerned), then, of course, he being in a separate department, for any negli gence of that conductor the company would be liable, and for any negli gence of the engineer on the engine the company would be liable.

We think the facts tend to show very strongly that there was negligence, both on the part of the conductor and of the engineer. At any rate, this was a question that was submitted to the jury, and I think the charge in regard to the engineer was more favorable to the defendant company than the law would warrant, but if the injuries occurred from the negligence of either of those parties then we think the judgment of the court was correct in respect to that question, and that in this classification he was not in the same department as the conductor or his engineer.

That is the only question that was submitted to us, and on that question we hold against the contention of the railway company. The other questions were submitted to the jury and have not been discussed It follows that the judgment of the court of common pleas will be affirmed, but without any penalty.

to us.

In re Davis.

WILLS-DOWER-DISTRIBUTION.

[Cuyahoga Circuit Court, March, 1901.]
Caldwell, Hale and Marvin, JJ.

IN RE JOSEPH DAVIS, EXECUTOR.

1. PROVISIONS Creating Equitable Conversion of Real Estate. A provision in a will directing a sale of the real estate of testator by the exel cutors, and that "the proceeds arising therefrom with all from any and alsources due to me from mortgages, bank or bills unpaid at my death to be used in paying all before specified as my indebtedness and to my legatees and the charities," constitutes an equitable conversion of the real estate into personalty.

2. WIDOW Claiming Dower Cannot CLAIM DISTRIBUTION.

Where, in accordance with the provisions of testator's will, his real estate was sold and converted into personalty by his executors, his widow having elected to be endowed in the real estate, under Sec. 4188, Rev. Stat., and having accepted out of the avails of such sale the proper amount as the value of her interest in the same, cannot afterwards claim distribution as of personalty, out of the avails of such sale.

3. WIDOW CANNOT OBTAIN Under Secs. 4188 AND 4176, REV. STAT.

No conversion of real estate into personalty can defeat a widow of her dower without her consent, but she is not entitled to have real estate sold by the executors under a will treated as equitably converted for one purpose and as not so converted for another purpose, so that she may obtain the benefit of the provisions of Sec. 4188, Rev. Stat., relating to estates in dower, in the real estate, and at the same time secure the benefit of Sec. 4176, Rev. Stat., providing for distribution of personalty, as to the same property.

4. CLAIMS INCONSISTENT--WIDOW SHOuld Elect.

The claim of a widow for a distributive share out of the avails of the sale of real estate of her deceased husband, upon the ground that such lands are to be treated, to her as well as the residuary legatees, as converted into personalty, is inconsistent with her action in claiming and accepting dower in the property sold. She should be put to her election, whether to share in the proceeds of conversion or to claim dower, and the acceptance of the latter will defeat her claim to the former.

8. WIDOW Not Provided for-RighTS IN PERSONAL Estate.

A widow for whom no provision is made in the will of her deceased husband has the same rig ts in his personal estate as she would have had if provision had been made for her and she had rejected it.

6. NOT MATERIAL AS TO HOW OTHERS TAKE.

In fixing the rights of the widow on distribution, under circumstances stated, it is immaterial whether the other distributees take as next of kin or as residuary legatees.

7. WIDOW NOT ENTITLED TO INTEREST ON DISTRIBUTION.

A widow, no provision having been made for her in his will, is not entitled to interest on her distributive portion of her husband's personal estate, from the expiration of one year from the taking out administration on the estate, for the reason that the amount to be distributed cannot be fixed until the court passes upon the accounts of the executor and orders distribution thereof.

HEARD ON ERROR.:

J. M. Jones, for Mary Hutchins.

E. P. Wilmot, and Wilcox, Collister, Hogan & Parmeley, for

executor.