261 F. 303 | 6th Cir. | 1919
James B. Connors commenced action against the railroad company in the common pleas court of Ma-honing county, Ohio, to recover damages for personal injuries alleged to have been sustained while in the employ of the company and through its negligence. On petition of the company the case was removed to the court below, where the company answered, and upon trial before court and jury a verdict of $22,000- was rendered, and judgment was entered thereon in favor of Connors. The company prosecutes error.
Plaintiff received his injuries in a roundhouse of the company at Cleveland. He is a machinist, and at the time of the injury was in a pit under one of the defendant’s passenger engines, and, pursuant to order of his foreman, engaged in tightening certain “engine truck jaw bolts.” While plaintiff was thus engaged, and standing between a truck axle and the end of an air brake piston, seemingly “turned side
Whether the situation thus in substance described signified negligence, which in view of the pleadings and the law would support the action, depends upon certain statutory conditions which will presently be considered. The applicable features of negligence charged in the petition in substance are: (1) Failure to exercise ordinary care toward ascertaining plaintiff’s position and either directly to apprise him or otherwise to give warning of the intent to set the brakes; and (2) failure to prescribe and enforce rules for the safety of employés working in a position about an engine where the setting of the brake would be likely to injure them. The answer denied these charges generally and averred that whatever injury plaintiff sustained was due solely to his own negligence.
Counsel for the company insist that the Metzger Act originated prior to the Norris Act, and is special in the sense that it relates only to railways, while the Norris Act is a general statute, and that the acts are in consequence to be so interpreted as to treat the special statute as an exception to the general statute, relying, for instance, on Gas Co. v. Tiffin, 59 Ohio St. 420, 441, 54 N. E. 77, and Doll v. Bar, 58 Ohio St. 113, 120, 50 N. E. 434. Stated in another way, the insistence is that the Metzger Law is exclusive in operation and affords no relief in a case like the instant one. That law concerns defects in railway rolling stock and tracks, which result in injuries to employes while engaged in operating trains, and also railway liability as respects negligence of fellow servants, assumption of risk, and contributory negligence. A synopsis of the sections comprising the law is set out in the margin.
It is to be observed that the portion of' the Metzger Act which is included in section 9016 of the General Code imposes liability for negligence of a railroad company or any of its officers or employés, “in addition to other liability,” thus indicating that it was not the legislative design that this act should be the sole source of a statutory right of recovery, but, on the contrary, that there was other existing statutory provision intended to protect railway employés, as well as employés in other occupations, against negligence of their employers. -Responsive provision in this behalf is to be found, we think, in the Norris Act, which in most comprehensive terms authorizes recovery in actions between employés and employers for personal injuries, “in’ addition to the liability now existing by law.”
“the negligence of a fellow servant of the employs shall not be a defense where the injury * * * was in any way caused or contributed to by * * * the want of necessary and sufficient rules and regulations for the government of such employes and the operation and maintenance of such ways, works, boats, wharves, plant, machinery, appliances or tools.”
It appears, in the opinion denying new trial, that defendant urged in support of its motion, as it urges here, that “there was no evidence tending to show a want of necessary and sufficient rules and regulations for the government of such employés.” The court, believing that both sections (6242 and 6244) were applicable, concluded that “the verdict should be sustained because substantial justice was done,” and that even if it was error to submit the issue as to rules it was not prejudicial to defendant. The questions thus confronting the court
Was it then reversible error thus to submit both issues to the jury? Although technically there is a difference between the issue as to “want of necessary and sufficient rules and regulations” (section 6244) and the issue as to alleged failure to notify plaintiff of the intent to test the air brake, yet the ultimate object of such rules and regulations must be to provide for giving seasonable notice or warning to protect employes who might otherwise be liable to injury ’through movement and manipulation of machinery and the like; and this at last is the essence of the issue here as to failure to apprise or otherwise warn plaintiff. It is possible of course that the jury believed that defendant had made no provision through rules and regulations to protect its employés; but this does not signify reversible error, since the effect of the verdict is to show that defendant’s inspector failed to notify plaintiff of the danger he was about to create.
*309 “As there was evidence proper for the consideration of the jury the objection that the verdict was against the weight of evidence or that the damages allowed were excessive cannot be considered.”
Our consideration of the remaining assignments convinces us that reversible error is not shown; and accordingly the judgment will be affirmed.
These sections are classified and grouped in Ohio General Code under heading “Employés,” and are in substance traceable to earlier statutes of Ohio passed, first, April 2, 1890, entitled “An act for the protection and relief of railroad employés, * * * 'declaring it unlawful to use ears or locomotives which are defective, or defective machinery or attachments thereto belonging, and declaring such corporation liable, in certain cases, for injuries received by its servants and employés on account of the carelessness or negligence of a fellow servant or employé” (87 O. L. 149); and, second, February 2S, 1908, entitled “An act to qualify the liability of railroad companies, for injuries to their employés” (99 O. L. 25).
These sections were classified and grouped in the original General Code passed February 14, 1910, under heading “Labor” (volume 2, p. 1348). Section 6242 of the group was substantially same as Act April 4, 1902, entitled “An act to make employers of workmen liable in damages for injuries caused by negligence in the inspection and repair of machinery, etc.” (95 O. L. 114).
The Metzger Act (section 9015) forbids companies knowingly or negligently to use or operate ears or locomotives which are in themselves or their attachments defective; if employé receive injury therefrom the company is charged with knowledge of defect, and if defect shown in employé’s action for the injury, such showing is made prima facie evidence of company’s negligence. Section 9016 provides that in actions by employés against railways impersonal injuries sustained through negligence of the company, “or any of its officers or employés, or in addition to other liability,” every employé having authority over another shall be deemed the superior and not the fellow servant of such other employé and also of employés in another branch or department who themselves have no power to direct or control. Section 9017 imposes liability for injury resulting to an employe from a defect in any locomotive, etc., which the company had negligently failed to discover, and provides that the injured employé shall not be deemed to have assumed the risk or contributed to Ms own injury by contimiing in the company’s employ after knowledge of the defect, and also makes the company liable for injuries sustained by an employé while engaged in operating trains, engines or cars, where such injuries result through the negligence of another employé. Section 9018 takes
We say this because of the common-law rule respecting the negligence of a. fellow servant. The court below ruled, and we agree to the ruling, that independently of the Norris Act the inspector who caused the air brake piston to be set in motion, and consequently the injury, must be regarded as the fellow servant of plaintiff:.
It is provided by that portion of the Norris Act which is included in section 6242 (3 P. & A. Ann. Ed. O. G. C. p. 383): “That in all actions brought to recover from an employer for personal injuries suffered by his employé * * * while in the employ of such employer, arising from the negligence or such employer or any of such employer’s officers, agents, or employés, it shall be held in addition to the liability now existing by law that any person in the employ of such employer, in any way having power or authority in directing o.r controlling any other employé of such employer, is not the fellow servant, but superior to such other employé; any person in the employ of such employer In any way having charge or control of employés in any separate branch or department, shall be held to be the superior and not fellow servant of all employés in any other branch or department in which they are employed ; any person in the employ of such employer whose duty it is to * * * inspect the * * * plant, machinery, appliances, * * * in any way connected with or in any way used in the business of the employer or to * * * give or transmit any signal, instruction, or warning to or for such employés shall be held to be the superior and not fellow servant to such other employés of such employer.”