• Harrison Circuit Court.

inferred from these particular facts are of such a nature that it would be arguing the case; but how can it be said to be arguing the case to take up a question that is submitted for the purpose of being answered by the jury as part of their verdict and say, "I don't know, gentlemen, how you will answer that; you might answer it one way or the other, but it I were you I would answer it this way." Certainly it would be improper for the court to make any suggestion how they had better answer, except to tell them to answer according to the evidence and the truth.

This court had before it a case in which the common pleas court directed the jury that it would be well for them to find their general verdict first and then their special verdict might be investigated and decided upon, thereby indicating that it would be well enough for them, if they came to a conclusion upon the general verdict to make the special findings correspond with the general one. We reversed the case upon that ground as being a misleading direction to the jury.

If any direction was to be given to the jury in respect to the special and general findings, how they are to be taken up by them, the jury should be instructed that they should find the facts without any reterence to who would be hurt or helped by such findings and then draw their conclusions by way of a general verdict from all the facts.

That this would be very prejudicial to the average jury in the average case, where able counsel is allowed to suggest answers, is pretty evident. We need not go out of this record to find that it is so. The jury seem to have followed the suggestions of counsel for the plaintiff below in respect to their answers, and the suggestions of counsel below were not proper; in substance, the suggestions were to avoid making a direct answer.

It may be that this case ought to be reversed, possibly may be, because the jury failed to return a verdict at all, having failed to answer specifically and categorically these questions.

Now, I have said that there are two prejudicial matters here that the court ought to have given some attention to. The first was the insinuation that there was something wrong on the part of the railroad company in suggesting to the court, or requesting the court, to have a special verdict in the case; and the record shows that this request was made before argument of the case had commenced. As I just read from the statute, it was not necessary that it should have been presented to the court then; it would seem to be sufficient it it was requested after the argument was closed, atter counsel's mouth was closed in respect to the argument of the case, except argument to the court as to the propriety of the questions.

This record shows that it was suggested to the jury that it was a sort of a trick to entrap the jury, to have questions presented without letting counsel on the other side know that the special verdict was to be demanded. Now, let us see whether the jury were probably influenced by these suggestions.

The first question was this: "Was the train approaching from the west running at a high and dangerous rate of speed?

"Defendant objects and excepts to this.

"Hollingsworth: Dunbar, don't jump at me as you do at a witness. In my judgment, from the proof as elicited trom the witnesses, both for the plain iff and the defendant, that answer should be substantially as follows:

Railway Co. v. Moreland.

"No, if the conditions were ordinary, but with the conditions as they were, considering the condition of the ice, it was dangerous." This is the answer the jury returned: "No, if the road and surroundings were in proper condition."

That

Now, what does the answer amount to? It amounts to this. the train was running at a high and dangerous rate of speed, considering the surroundings and conditions of the road. It is difficult to see what the jury meant by it. Apparently they simply, parrot-like, re-echoed the suggestion of counsel.

It is said by counsel for the plaintiff below, that this was a very intelligent jury; that they made very intelligent answers. I think too much credit is given to the jury. They seem to have originated nothing; the intelligence simply came from counsel, and the only intelligence they exhibited, as far as the record shows, was remembering what counsel suggested the answers should be.

But, there is another difficulty about this, that prevents our making a decided ruling upon the question of the conduct of the court in not stopping this sort of conversation or taking the jury into his confidence as to what they should do in the jury room after they had gotten in there.

Take that first question. It wasn't properly answered, but why was it put? Perhaps because the court hadn't then charged the jury, and counsel for the railroad company were not advised as to what the charge of the court would be. But the court charged the jury that the way that the train was managed was not a fact for their consideration, for there was no proof upon the subject, and looking into the petition we find that it is not charged, even, that it was running at a high and dangerous rate of speed. So, that that wasn't one of the facts in issue for the jury to consider; it was entirely immaterial what their answer was upon that question. It wasn't a fact in issue.

Now, without going through all these questions, there isn't more than one or two that suggested to the jury the finding of any fact specially that was in issue in this case under the charge of the court.

Take the second: "When Moreland could first see the train approaching, did he have sufficient time to reach a place of safety?"

Counsel suggested to the jury that they had better answer, "Yes, if it had not been the custom of the company for him to remain there until the train got close by and then step back out of the way."

Now there was no controversy about the facts. He testified himself that he could see the train in ample time, running at the speed it was, to have gone across that track a half dozen times, but the custom was, as suggested by counsel, to keep at work as long as they could with safety to themselves, not leaving their work as soon as the train came in sight.

The answer of the jury to this question was, "Yes, if he had known of danger."

Now that is no answer. Known of what danger? Danger of ice, or of the train, or because he hadn't sufficient time to reacli a place of safety? The jury hasn't said so. It was only that he would have had time if he had known of danger.

Third. "Was the speed of the approaching train so great as to render it impossible for Moreland to cross the track to a place of safety?"

There was no question about the speed of the train left to the jury by the charge of the court. No question in the petition and the proof

Harrison Circuit Court.

left it in no doubt but what he had ample time. The answer of the jury was, "No, if he had started in time.

It the train had been five miles off when he saw it the same answer would have applied. I don't wish to have to charge counsel with having suggested that, but I guess it will be necessary to charge counsel with it. The answer counsel suggested was, "No, not if he started scon enough." So that it was simply the suggestion of counsel that they should not make a correct, proper and direct answer to the question. Fourth. "Is tamping ties a dangerous employment?"

That is not an issue in this case and ought not to have been submitted to the jury. Still the suggestion was made by counsel that they should answer in this way: "No, if you have a safe place in which to tamp them. So the jury answered, "No, if the surroundings are sate." So the court couldn't know, in entering the verdict, if there was an issue in the case, whether tamping ties is a safe business or not. They might as well have answered, "sometimes it is, sometimes it isn't."

Fifth. "Was the work being performed by Moreland more hazardous than the work being done by the other members of the section gang?"

That is not an issue in this case, no part of any issue in this case, but still it is answered in this way: "No, had he been on the same side of the track." The suggestion by counsel was that they should answer thus: "No, if he had been on the same side of the track."

Sixth. "Was the ice which had accumulated on the south wall of the cut there from natural causes? Yes."

Seventh. "Did Moreland have knowledge of its presence prior to the accident? Yes." Counsel suggested, "He had knowledge that there was ice at that point but no knowledge that it was in a dangerous condition or liable to fall by the passing of the train."

Eighth. "Was Moreland aware of the nature and character of this ice prior to the accident? Yes, of the physical nature, but not of its dangerous condition." That is a fact that was in issue in this case, whether Moreland was aware of the nature and character of this ice prior to the accident and the answer is fairly made.

Ninth. "With his knowledge of the ice being upon the wall, did Moreland stand under it? No, he stood close by."

Tenth. "Could Moreland have avoided standing there? Yes, had he known of its danger."

But in ignorance of the danger he could not have avoided standing there. Well, it was a question which ought not to have been asked. There was nothing for the jury to determine about it. It was an admitted fact that he could have avoided standing there. The plaintiff below himself testified that he could have gone to the other side, gone the other way and had plenty of time to do so.

Eleventh. "Could Moreland have stepped to the east of this mass of ice and have avoided being injured?" That wasn't a matter in dispute at all; the answer was, "Yes, had he known of danger." Of course he couldn't have done it unless he had known of danger.

Twelfth. "Could Moreland have stepped across the track to the

north and avoided injury? Yes, had he known of danger."

Counsel said to the jury that these questions ought to be answered the same way and they were. Now, there was no dispute about them. They were conceded facts.

Railway Co. v. Moreland.

So with the thirteenth, which counsel says is the unlucky number by which he hopes to catch the jury.

Thirteenth. "Was Moreland injured at the place where he was sent to work by the foreman, or at a place he had voluntarily selected to avoid the passing train?" That wasn't a question in dispute. He wasn't hurt at the spot where he was at work. Nobody claimed that. The petition claimed he wasn't there at the time; the evidence in the case showed that he was there.

The answer was, "He was injured where he was standing while the train was passing." That is to say, he was injured where he was injured. The question whether he was injured at the spot where he was set to work, they didn't answer, except in that way.

Now we find here but one question that was proper, perhaps, to be submitted to the jury as a basis for the action of the court, and that one having been properly answered, we think we will pass this matter by. So we do not find, under the circumstances, that the defendant below was prejudiced so as to call for a reversal of this case. Whether it would have been reversed otherwise or not, we make no further admissions.

The only remaining question in this case is, that the verdict is excessive and against the evidence. We are unable to see how we could base an opinion, upon this record, that it is excessive. If the jury believed the statement of the plaintiff below, he was severely injured, permanently injured, a substantial loss of his eye and much suffering, and bruises, etc, etc. That contention cannot be sustained.

Now, as to the verdict being against the weight of the evidence. This case has once before been reversed on substantially the same evidence, as not being supported by sufficient evidence.

Here was an accumulation of ice without the fault of the defendant. It is alleged in the petition that there was a ditch running along the top of the hill and that the ditch was out of repair, throwing the water down the side of this cut, and that the accumulation of ice was there by reason of this ditch being out of repair. There was no proot to support it. The court took that question from the jury wholly, so that it leaves the case without fault of the defendant as to the accumulation of ice.

The fair inference from the evidence is that at the top of this ledge of rocks, some twenty feet above the surface of the railroad, water seeped out under the soil and ran down the side of the rock. It was springy there. In cold weather, trickling down there, it congealed and large masses of it formed, not alone at this spot, but upon that side for several hundred feet, where substantially the same conditions obtained. If it was not any fault of the railway company in the ice being there, as to their workmen, the fault would be in not removing it. These very workmen would be called upon to remove it. It would be one of the duties that they would be called upon to perform, in looking after the track and its surroundings, it would be one of the hazards that they assumed in doing that work, it the railway company would attempt to remove it.

Now, it is quite evident that the plaintiff wasn't guilty of negligence; he has to work where the section boss sent him to work; that large mass of ice hanging there, twenty feet above him, caused some apprehension on his part. It is not denied but what he called the

Harrison Circuit Court.

attention of the boss to it and says, "Is this safe to work here?" It is not strange, as an intelligent workman, he was apprehending danger from this large accumulation of ice at that spot. The section boss gave it as his opinion that it was safe, reterring to the fact that he would be safe at that particular spot where he was at work.

Now, the section boss and Mr. Moreland, each of them, had in mind simply the fact of the falling of the ice where he was at work. They were not apprehending any danger from the passing train, of having in contemplation that the train was going to pass. I don't see how More

land could be charged with any fault whatever; as to him it was purely an accident. The only question is, whether any fault could be charged to this railway company. There was ice hanging there. It was melting some that day, the water was trickling down and Mr. Friend went there and examined it and tried it with the handle of his shovel or some other instrument and it seemed to be firm. Nobody, no expert could have told whether it was slipping on the rock or not, or whether, if it did slip, it would slip down the rock, or whether it would be first loosed at the top and fall from the top. Had it so fallen, he would have been

in danger where he stood at work. The result showed that it slipped down and didn't fall on the track. It was liable to fall either of these ways. When Friend told Moreland that it was safe, he meant he didn't think it would fall, and Mr. Moreland knew at the time that Mr. Friend didn't know anything more about it than he did, except he had gone there and pounded at it, pried on it to see whether it was loose.

Now, really, when you look at this case and consider it as a question of negligence or want of duty between these two employes, one the superior and one the inferior, were either of them guilty of negligence? What more could Friend have done than to make the test he did make? He appeared to want to make everything as safe as he could for his subordinates, made all the test within his power, apparently, to see whether that ice might all and by peradventure hit one of the workmen. What more would be demanded of him?

If it was a matter between a farmer and one of his hired men, and, under the same circumstances, the farmer took the same precaution to see whether something would fall or not, would anybody suppose the farmer was guilty of any negligence in not doing something more?

They were both employes of the corporation. A corporation must do its work by employes, one the superior of the other. Was it one of those ordinary hazards that the employe assumes in entering into a dangerous employment? Was it not?

The case would seem to be resting upon a pretty slim cord. Yet, this case has been reversed once because of the fact that the jury ought to have found a verdict upon this evidence against the defendant. Ante, p. 604. It is not enough that the jury may be able to say from the evidence that the accident did occur by reason of the fault of the defendant below. It is not enough for them to be able to say that they didn't know whether the railway company or the defendant below was guilty in any case, of negligence or not. They must find affirmatively, under the evidence, that there was neglect of duty. It is very questionable whether that neglect of duty appears here affirmatively in this record.

It is suggested to us that this court is not authorized, in view of a late statute, to reverse a case by reason of the verdict being against the evidence but once. We are not able to ascertain what that law is from the brief printed in reference to it. All we have here is Sec. 5306, provid