Harrison Circuit Court.

be seen approaching for a distance of six or eight hundred feet, and it was a freight train moving slowly; and he says he had plenty of time. The question is asked him, "You would have been safe it you had gone to the north side?" and he says, "Certainly, but that was not the customary way of leaving the track. When a train is approaching, I leave on the south, or usually do."

Apparently, he was working a little further west than this mass of ice, but when the left the track he moved right under it or a little to the east of it.

It was a case where no one anticipated the falling of the ice at that time, and if plaintiff had had a strong suspicion of danger, it was not on his mind at that time, nor on the mind of the boss, or any of them; and he stepped off there and was hurt.

Now whose fault was it?

It he had had some knowledge or some suspicion of its being dangerous to approach that hanging ice, whose fault was it it he forgot it? Could it be said that he was lured into any sense of security by the opinion of the section boss? He knew exactly upon what that opinion was based. What caused this injury? The carelessness of the plaintiff, either in forgetting the danger of approaching this ice or stepping off there unnecessarily in disregard of the danger.

It is a question of law, and not to be speculated about by the jury, if a person can easily avoid a place of known danger, but takes the chances of going into it, whether he is guilty of contributory negligence or not, is not a question to be speculated about.

Take Schaefler v. Sandusky. 33 Ohio St. 246 [31 Am. Rep. 533]. This is a case which has been affirmed several times. The syllabus is:

"A person who voluntarily attempts to pass over the sidewalk of a city, which he knows to be dangerous by reason of ice upon it, which he might easily avoid, cannot be regarded as exercising ordinary prudence, and, therefore, cannot maintain an action against the city to recover for injuries sustained by falling upon the ice, even it the city would otherwise have been liable.''

The jury, by special verdict, in this case found that he might have avoided it. The Supreme Court say, upon the findings of facts by the jury, that it may be fairly interred that he could have easily avoided the obstruction.

Certain it is, that this plaintiff could easily have avoided this injury. He could have stepped off on the same side and moved along eight or ten feet away from this hanging ice and he would have been safe. He could have stepped off on the other side where it was perfectly safe and where there was no ice, and some twenty feet to the bank of this cut.

Shall it be charged to the railway company as a wrongful act on their part, to put him to work where he could go into danger if he saw fit, if he took no care for his own safety?

Why, any of us, if placed in the same position after being hurt by such a performance, would say simply, I was careless, I forgot about that ice hanging there; I ought not to have gone there. There is no rational man but what would accuse himself of negligence in the matter.

Now, in respect to Schaefler v. Sandusky, supra, the case I have read from. It is by statute made the duty of the city council-the council of the corporation to keep its streets and sidewalks in repair and free from nuisance and to allow no ice to accumulate. The party knows there is ice there, but he thinks he can go over it and has a right to be there,

Railway Co. v. Moreland.

walking on the sidewalk. If he voluntarily goes over it where he sees it is a risk, it is his own fault if he slips and falls and is injured, say the Supreme Court, as a matter of law.

Did this railway company owe any higher duty to the safety of its workmen than the corporation of the city did to its citizens?

The workmen of this company assumed all the ordinary risks incident to the employment. The workmen did more; they assumed all the risks to which they knew they were exposed.

If, in Schaefer v. Sandusky, snpra, the party, as a matter of law, cannot recover who voluntarily goes upon a place that he knows is dangerous, how is it that a workman who voluntarily and unnecessarily places himself in the same hazardous position, and is injured, how can he say, "I am injured by the fault of the railway company," or any other? "It is not my own fault."

But, however this may be looked at by different minds, this proposition, certainly, all will agree to: That plaintiff was guilty of some fault. It the section boss was guilty of any fault in placing him there and not anticipating that the train would pass, or that he might go near this chunk of ice, he was also guilty of some fault in not looking after his own safety and in stepping near it when the jar of the train would throw it down; and if they were mutually in fault, as a matter of law, he has no right to recover.

Exceptions are also taken to the charge of the court in several

respects.

Defendant excepts to what the court said, "that it was the duty of the defendant to have discovered the dangerous character of that work, it it could have done so.

Now, turning to the charge of the court, we find that the court did charge in this language: "It was the duty of the defendant and its agents, having direction over its men, to have ascertained the dangerous character of that work, or if the defendant knew of the dangerous char. acter of the work, or could have discovered the dangerous character of the work, it was his duty to do so."

Now, in other parts of the charge, the court has told the jury that it was the duty of the defendant company to exercise ordinary care in procuring a safe place for the plaintiff to work, and in endeavoring to prevent injury to its servants, but in this part of the charge the jury is told that it was the duty of the defendant and its agents to have ascertained the dangerous character of that work.

It will be conceded by all lawyers that that is not the law. If that were the law, it would be only necessary to prove that the place where a man was set to work was dangerous; that he had no knowledge of its dangerous character and that he was injured by reason of it.

It is only the duty of fallible human men and fallible human corporations to exercise ordinary care to ascertain the dangerous character of the place where their workmen are set to work. That higher degree of care would be a degree of care that would make it impossible for anyone to be injured without making his employer liable.

Now, applied to this case, it made it the duty of the defendant and its servants to have ascertained whether this ice was liable to fall or not, not to take all ordinary precautions to ascertain it, not to take reasonable measures, such as human beings are supposed to take, but to have ascertained it at all hazard. They must find out at their peril whether it is liable to fall or not.

39 O. C. D. Vol. 12

Harrison Circuit Court.

The court also, although it is not excepted to, did not give the ordinary definition of what is ordinary care, in this case.

At page 52 he says: "Both the defendant company and the plainti owed a legal duty toward each other, that is, both were required to exercise ordinary care. The ordinary care required on the part ol either the plaintiff or defendant, in order to be exempt from any legal consequences resulting from their conduct, is defined to be such care as prudent persons are accustomed to exercise under the peculiar circumstances of each case."

What kind of prudent persons? Men of ordinary prudence or of the highest degree of prudence, or the lowest degree? The true rule, as declared by our Supreme Court is, that ordinary prudence or ordinary care, is such prudence as persons of ordinary care usually exercise.

No exception is taken to this and perhaps it is of no consequence in the case as it might not mislead the jury.

There is another exception to this charge, or rather two or three exceptions that we will notice.

Exception is taken to the charge in this language: "Also to what the court said about the dangerous character of that work in each several instance where it is repeated, or where he uses any expression as to the dangerous character of the work, in the charge."

"Defendant excepts to what the court said in submitting to the jury the question whether the defendant was guilty of negligence in the running of its train; also as to what the court said as to keeping the right of way safe, where the plaintiff was placed at work by the section boss; also in submitting to the jury whether the place where the plaintiff went to work was a place of safety, when sent to work there by the section boss; also whether his injuries resulted from going to work where he was directed; also to what the court said in submitting the question to the jury, whether the plaintiff was directed to work in a place where it was dangerous, by the section foreman."

We think all of these exceptions were well taken. They had no application to the real case as made by the proot.

It was only in proof that the injury resulted from his working upon the track, but such a claim as that was actually disproved and disproved by the plaintiff himself.

The plaintiff's own evidence shows he was not injured while working upon the track. It also shows beyond all question that there was no negligence upon the part of the defendant in running its train.

Plaintiff's evidence also showed that the place where he was set to work was not a dangerous place from this ice, yet all these questions are submitted to the jury, and what is remarkable about the case is, that neither counsel for the railway company nor the court in its charge, even suggested what was the negligence that was made in the proof.

The only possible negligence that was the direct or proximate, or any other cause of the injury to this plaintiff, was his stepping to the south side of the track while the train was passing and putting himself in proximity to this hanging ice; and the question should have been submitted to the jury, it it was to go to the jury at all, whether he was guilty of contributory negligence in thus putting himself near that ice, in dangerous proximity to it, knowing what he did know about its con

Railway Co. v. Moreland.

dition; and the question should have been submitted to the jury only and solely as to whether the defendant company was guilty of negli gence in putting him to work where a passing train would lead him naturally to step to the south side and come into a place of danger.

Nowhere in this charge is the jury told what the negligence of the case, that is, the actionable negligence, is.

All these things are put together and then the charge is of the most general character, and the jury are told to look to see whether by any act of omission or act of commission on the part of the defendant company the plaintiff's injury was caused; not even restricting it to the allegations of the petition.

The petition is read to the jury, as to what was the duty of the railway company and the failure to perform that duty, and all this is put to the jury by reading the petition, the answer and the reply. But, after the case has been heard and the evidence has been developed, then some of the allegations or averments of the petition were disproved. Many of them were disproved by the plaintiff's evidence, and it left some few facts, as we have seen, to be submitted to the jury, clearly and distinctly to pass upon these facts.

It was not a question whether there were any sins of omission or commission, but it was a question whether the defendant was guilty of negligence as to the specific charges in this case. Other things of omission or commission were not of any importance in this case. The Supreme Court of Ohio, in Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Rep. 725], has passed upon this question.

I am reading paragraph six of the syllabus: "The charge of the court to the jury should not be as to abstract propositions of law, but should be confined to the law applicable to the facts of the case, which the evidence tends to establish, and the attention of the jury should be called to the controlling point or points of the case, so that the verdict may not be founded upon unimportant matters."

It would be instructive to all lawyers and judges to occasionally read this charge of the court below in Coal Co. v. Estievenard, supra, and the comments of the learned judge of the Supreme Court upon such charge.

The charge in this case was much more definite than in the case at bar. The defect in the charge on the question on the subject of contributory negligence is that it is in the abstract, dwelling on generalities and failing to deal with the facts in the case. The court did not tell the jury what facts would defeat a recovery, but contented itself with telling them to look to the evidence without telling them what use to make of such looking or the result thereof.

The charge of the court to the jury should not be in the abstract but in the concrete, applicable to the particular case or trial. Usually the court should say to the jury, that the facts as claimed by the plaintiff if found to be true, do or do not constitute negligence on the part of the defendant. In like manner the court should say to the jury, that the facts claimed by the defendant if found to be true, do or do not constitute contributory negligence; and every case turns upon a few controlling facts and usually one or two, and whichever way these are found by the jury the verdict of the jury should go.

The attention of the jury should be called to these controlling facts with instructions to return their verdict as they shall find these facts to be.

Harrison Circuit Court.

Now we think that the court in its charge to the jury erred in the particulars I have mentioned, and that the charge was subject at least to criticism for being not only in the abstract, but in submitting to the jury the inquiry as to acts of omission or commission that might lie entirely outside, and in this case did lie outside, of any actionable negligence that remained in the case after the evidence was put in.

The question of the running of the train was still left there by the charge, and the place where the plaintiff was sent to work being dangerous. If there had been nothing more than that about it the case was not a case to go to the jury.

The court failed to call the attention of the jury, and counsel for the defendant failed to request the court to call the attention of the jury, to the question of the negligence of the defendant or the contributory negligence on the part of the plaintif upon which the case, it it should be tried, must turn.

The case is reversed, a new trial ordered and the cause remanded for a new trial.

NEGLIGENCE-EVIDENCE-CHARGE TO JURY.
[Harrison Circuit Court.]

*PITTSBURG, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY Co. v. WILLIAM MORELAND.

1. QUESTIONS Tending to REFRESH RECOLLECTION OF WITNESS.

In an action against a railway company for personal injuries alleged to have been the result of carelessly placing the plaintiff, a section hand, at work in a place where ice, which had accumulated upon a ledge or an embankment, fell, as a result of the jar of a passing train, which he had stepped aside from the track to avoid, and injured him, the question whether the recollection of a witness, as to what was said by the foreman as to the safety of the place, may be refreshed by an inquiry as to whether or not certain statements were made, is largely within the discretion of the trial judge; and, particularly where the answer could not have been material or prejudicial, his ruling will not be considered by a reviewing court.

2. QUESTIONS EXCLUDED AFTER FULL EXAMINATION.

Where a witness has been examined fully touching the facts in controversy, in case at bar, as to the danger from falling ice, a question, "Was there anything that you could know other than any other workman there knew," was held to have been properly excluded.

Affirmed by the Supreme Court, without report, 60 Ohio St. 604.

J. Dunbar, for plaintiff in error, in the Supreme Court, cited:
Contributory negligence: Schaeffer v. Sandusky, 33 O. S. 246.

Duty of master as to providing safe appliances: Stewart v. Toledo Bridge Co., 8 Circ. Dec. 454.

Motion to direct verdict: The Lake Shore & M. S. Ry. Co. v. Andrews, 58 O. S. 426.

D. A. Hollingsworth, for defendant in error, in the Supreme Court, cited: A master is bound to inform his servant of all dangers in the service of which he is cognizant, or which, in the exercise of ordinary care, he could have been informed. Swift & Co. v. Fue, 66 Ill. App. 651; Stucke v. Railway Co., 23 So. Rep. 342 [50 La. Ann. 172]; James v. Lumber Co., 23 So. Rep. 469 [50 La. Ann. 717]; Hall v. Murdock, 72 N. W. Rep., 150 [114 Mich. 233]; Rhoades v. Varney, 39 Atl. Rep. 552 [91 Me. 222]; Disano v. Steam Brick Co., 40 Atl. Rep. 7 [20 R. I. 452]; Hill v. Winston, 75 N. W. Rep. 1030 [73 Minn. 80]; Mullane v. Railway Co., 46 N. Y. State, 957; Siedentop v. Buse, 47 N. Y. 809; Chicago Edison Co. v. Hudson, 66 Ill. App. 639; Ashland Coal, Iron & Railway Co. v. Wallace, 42 S. W. Rep. 744 [101 Ky. 626]; Bussey v. Railway Co., 30 S. E. Rep. 477 [52 S. C. Rep. 438].