Lead Opinion
Action by defendant in error, Kratzer, herein called plaintiff, to recover damages of plaintiff in error, the Norfolk & Western Railway Company, herein called defendant, for personal injuries. The suit was brought under the Ohio Railroad Employers’ Liability Act (Ohio Gen. Code, § 9017, subd. 2). The only question is whether the court erred in denying defendant’s motion for a directed verdict.
The main line of defendant’s road runs almost east and west through Winchester. The track is straight and crosses at least three streets of the village. The depot is on the south side of the main track. Opposite the depot is a side track branching from the main about 700 feet east of. the station. A
Plaintiff was an experienced engine tender. At about 5:25 p. m. September 3, 1926, a work train engine was placed on the “wye” by Plummer, the engineer, and turned over to plaintiff for the night. Plaintiff and Plummer “blocked” the engine; that is, put wooden blocks, picked up nearby, under the drive wheels to prevent the engine from creeping. Coonriver, the conductor, observing that the engine was too close to a building, directed the plaintiff to move it, whereupon Plummer said to plaintiff: “Now those" (the blocks under the drive wheels) “are not substantial enough for the second blocking and you will have to look up other blocks." (Italics ours.)
About 10 o’clock, because it was lighter in that direction, plaintiff walked eastwardly upon the side track in search for blocks. He continued upon the side track and main track until he had passed somewhat beyond Jefferson street crossing. His search fruitless, he started upon his return, and walked along upon the right side of the main track, evidently upon the ends of the ties, until, near midnight, at a point about 150 feet east of the Jefferson street crossing and just as he began to stoop to remove something from his shoe, he was struck on the hip by the engine of a through freight going west. He did not see or hear the train, and neither the engineer nor fireman saw him. The eleetrie headlights were burning brightly, and the train running slightly upgrade at about 15 miles per hour and presumably on schedule. It is practically undisputed that the engineer and fireman at the point of the accident were watching the block signal at the station about 900 feet away. They were also looking to see if the operator would come out with orders. On approaching the station, the fireman did receive the orders, the block cleared, and the train proceeded. We think that the defendant was entitled to a directed verdict. Negligence was the gravamen of the action and none was shown.
Readily assenting that Plummer and Coonriver were superior servants of plaintiff (Ohio Gen. Code, § 9016; Railroad v. Pero,
Neither may it be said that the trainmen were negligent. They had no reason to anticipate that plaintiff would be out upon the track at least 900 feet away from his engine around midnight. The engineer and fireman were justified in honoring the signals at the station. This was not negligence; it was their duty. Controverted questions as to whether the engine blew for the station or the crossings are not determinative. The station signal was for the operator, and the crossing signals for the protection of travelers. Neither was intended for plaintiff. His action lies only for a breach of duty to him. Norfolk & Western Ry. Co. v. Gesswine,
That plaintiff’s situation was attended with some danger cannot be gainsaid. So is that of every one upon a railroad track. However, such danger was only that usually ■and normally incidental to such environment, and the law requires that he assume the risk of it. He was aware, not only as a matter of common knowledge, but as the outgrowth of experience, that a train was likely to approach at any time. Toledo, St. L. & W. R. Co. v. Allen,
The judgment is reversed, and the case remanded for a new trial.
Dissenting Opinion
(dissenting). This ease presents the single ultimate question whether the trial court properly overruled the motion made at the conclusion of all the testimony, to direct verdict for defendant. The court’s action was correct, and the case was properly submitted to the jury, unless there was am entire absence of testimony which, if believed, would justify recovery under.the applicable law.
There was substantial evidence supporting a conclusion that plaintiff was, when hurt, in the performance of his duties as engine tender and caretaker, and was thus not a trespasser, to whom defendant would owe no duty, except of not wantonly injuring him. There was also express testimony that the defendant’s freight engineer and fireman, who testified they did not see plaintiff on the track, could have seen him, had they looked, even when several hundred feet away, and in ample time to warn him of his peril; also that whistle was not blown or bell rung in the vicinity of the accident, at crossings or elsewhere, or any attempt made to warn plaintiff. On this hearing we must aecept (as it was the duty of the trial court to accept) the view of the evidence most f avorable to plaintiff. We cannot (nor could the trial judge) weigh the evidence or pass upon the credibility of witnesses. Worthington v. Elmer (C. C. A. 6)
The instant ease was submitted to the jury squarely upon the propositions that the enginemen “are required to keep only such lock-nut as reasonably prudent engineers and firemen would keep under the same surrounding circumstances, * * * and that it is for the jurors to say whether or not, at the time of night when this accident happened, under all of the surrounding circumstances, this engineer and fireman used that reasonable care which other reasonable men would use and consistent with their other duties.” The question of due care was thus properly submitted. !
If it be suggested that at common law plaintiff might be considered guilty of contributory negligence, and so disentitled to recover, it seems enough to say that under the Ohio railway statute contributory negligence of a plaintiff does not bar recovery, unless, in the opinion of the jury, the plaintiff’s negligence is greater than the defendant’s, and that “all questions of negligence and contributory negligence shall be for the jury.” Gen. Code Ohio, § 9018. We have held that this statute has abolished the defense of contributory negligence as an absolute defense in bar, and substituted therefor the rule of comparative negligence. Erie R. Co. v. White (C. C. A. 6),
In the instant case the question of contributory negligence was properly submitted to the jury. It seems clear that the judgment below must be affirmed, if the decision of this court in Southern Ry. Co. v. Smith,
The cases cited in that opinion lend it substantial support. In Northern Pacific Ry. Co. v. Craft (C. C. A. 9),
In the case of Snyder v. Railway Co.,
Our Southern Railway Co. Case has been cited in D., L. & W. Ry. Co. v. Hughes (C. C. A. 2)
Also distinctly in point is Frazier v. Interstate Railway Co. (C. C. A. 4)
It is clear that the engineer of the freight train here in question was in his department a superior of plaintiff, and that the latter had no power to direct or control in the branch in which he was employed. The instant ease is thus brought within the statute, not only by its prima facie construction, but by the decisions of the Supreme' Court of Ohio and of this court. See Railroad Co. v. Margrat,
Turning to the decisions of this court: In Erie R. Co. v. Kane,
I find nothing in the later decisions of this court whieh by implication can be said to overrule Southern Railway Co. v. Smith. Railway Co. v. Zimmerman,
The decision in the instant ease was rested squarely upon the proposition of faet stated in that ease, and quoted in the early part of this dissent. No question of statutory •liability to warn by bell or whistle, either at crossings or elsewhere, was involved. The sole basis of recovery was a common-law liability “to use such reasonable care as reason.ably necessary to avoid injury to an employee who may neglect to protect himself,” upon a basis substantially analogous to the general rule announced in Grand Trunk Railway Co. v. Ives,
The jury found the facts in plaintiff’s favor. Defendant made a motion for a new trial, which it formally withdrew. Doubtless the trial judge thought the evidence was ample to sustain the verdict; otherwise the latter would presumably have been set aside, especially in view of the motion to direct. I see no reason to think any injustice has been done defendant. It is one thing to say that a switch engineer is not required to look out for switchmen. To my mind, it is quite another thing to declare that the drivers of an engine hauling a freight train owe no duty to exercise reasonable care to avoid running over a switchman lawfully in the yard.
Nor do I see any force in the proposition that, in a case such as presented here, recovery can be permitted only on proof that the engineer and fireman actually saw plaintiff’s danger in time to avoid running over him. This is not a ease of “last clear ehanee,” which is based on the proposition that, although defendant was not originally negligent, and although plaintiff’s peril was caused by his Own negligence, defendant would yet be liable if it discovered (or, as held by some courts, by the exercise of due care could have discovered) plaintiff’s peril in time to prevent the accident. In the instant case, as in the Southern Railway Co. Case, the defendant is charged with negligence directly causing plaintiff’s peril. I may add that in Sehlereth v. Railway Co., supra, there was no allegation that defendant actually knew of plaintiff's danger.