11 Ohio C.C. 579 | Oh. Circ. Ct., Mahoning | 1896
In this case the Railroad Company seeks to reverse a judgment rendered against it in favor of Blair for $8000, for an injury to his hand.
It is claimed that the court below erred in instructing the jury that it might take into consideration the ordinary method amongst railroad conductors of getting off trains at registering points, in order to ascertain whether or not, the plaintiff was injured by his own negligence. He was a conductor of a freight train, and by reason of a defective step fell,and the wheels of the car ran over his hand, in the night when the train was in motion, at a station where he was required by the rules of the company to register the time of its arrival and departure from that place. And he testified that it was customary for railroad conductors in performing this duty to get off while the train was in motion; and subsequently, on cross-examination, he testified that he
Now while it is true that the court might have properly refused to submit the matter to the jury, yet where the evidence went in without objection, so that it was before the jury, it was not error for the court to permit the jury to consider it. If there had been objection taken to the testimony so as to have raised the point at the threshold, and made it where and when it should have been made, a different proposition would be presented. This court has heretofore declared that such testimony is incompetent, and cannot be introduced for the purpose of excusing negligence on the part of the plaintiff, because if it is a negligent act, no amount of custom can make it otherwise. But as there was no objection whatever made to the testimony, the court might, in its discretion, submit it to the consideration of the jury.
Exception was taken to the charge in regard to the knowledge of the defect by the company. The claimed cause of the injury by the plaintiff was, negligence of the company, in permitting to be upon one of its cars a defective stirrup or step, upon the end of the car, for the use of the employes of the company in getting on and off the train; and it became an important question in the case whether the defendant company had knowledge of this defect or not'. The accident occurred the 4th of September 1894, and consequently after the act of April 2, 1890, 87 O. L. 149, was passed. The second section of this act provides: “It shall be unlawful for any corporation to knowingly and negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the ma
He had been running as conductor on the branch road of the ^company between Pittsburgh and Ohartiers station for six jor eight months prior to this injury, and he was at the time ofjthe injury on a return trip ¡¡from Chartiers station to Pittsburgh; so that he was in the performance of services entirely within the state of ^Pennsylvania. It does not appear, however, that the contract of service was made injthe state of Pennsylvania. It appears fromjthe record that the plaintiff had his residence in this city-when he was originally hired by the company, and still resides here. That he was originally hired to work upon the road as conductor to run between Youngstown and some point in Pennsylvania on the line of the road, and so continued for several years; but six or eight months before the accident he^was assigned by the assistant train master of the company to this branch in Pennsylvania, to take charge as he said of the double (BB) caboose. It does not appear by the record where the assistant train master’s office was, nor where he lived; all that appears is that Blair was hired by the company, and was assigned to do business wherever his superiors chose to put him, and for a few months before this injury was received he had been assigned to duty upon thejoranch road in Pennsylvania where he was injured. And as this corporation was running and operating a road partly within and partly without this state, and as the contract was not shown to have been made in Pennsylvania, the case is governed by the act referred to. If the contract had been made in the state of Pennsylvania, and to be wholly performed there, I think this statute would not apply. In McCann v. Pennsylvania Company 10 C. C. R., 139, there
It is claimed that there was no question in the case of the competency of the inspector, because no such claim was made in the petition, and that the sole allegation in the petition in this regard was that the company had no inspector at all at Jacob’s Run to inspect the car. But these matters all disappear by reason of the force and effect of the statute
The answer, however, among other things, alleged that the defendant company had a competent corps of careful inspectors along its line, whose duty it was to carefully inspect cars substantially at every station upon its line, and wl o regularly and carefully performed that duty; that in the state of Pennsylvania the plaintiff and such inspectors were fellow-servants, for whose negligence no recovery could be had by the plaintiff; that it had discharged its duty to the plaintiff, and if he was injured by reason of the negligence of such inspectors in failing to discover and remedy such defective step, the plaintiff could not recover of defendant therefor. In Railroad Company v. Erick 51 Ohio St., 146 the same answer was made substantially, and the court held that it was no defense under the statute referred to, and that the company could only relieve itself from the imputation of negligence by showing that actual, careful and proper inspection had been made of the car in question, and no such defect found. These matters, therefore, all passed out of this case by virtue of the provisions of the statute in question. Whether there had been an actual inspection of the car was properly left to the jury under further issues in the case.
The next proposition that is made is as to the burden of proof upon the question of contributory negligence. The court charged that the burden of proof of contributory negligence was upon the defendant,unless the testimony on part of the plaintiff raised a presumption of contributory negligence on his part, and if the jury found that it did, then the burden of proof would rest upon the plaintiff to rebut and remove this presumption, and produce a preponderance of
If the facts are such that it is doubtful whether or not the plaintiffs testimony raises such a presumption, this rule applies, and the question must go to the jury, the court not being permitted' then to determine it; but if the presumption is not doubtful, if the facts are such that there can be no reasonable presumption but that of negligence, then the rule does not apply in our estimation, and it is then a question of law only to be determined by the court.
Now, how is it in this case? Blair was conductor of this • train with the authority to stop it by signal to the engineer, in the performance of his duties whenever he saw fit, and at,
He claims he was injured because the stirrup or step of the car was loose at one side; the nut was off the bolt, and when he put his weight upon the step, it gave way and threw him down, and'the train ran over a part of his hand. Beyond any question, he could not have suffered such an injury if he had performed his duty in the way the company had authorized him to do it — -to stop his train, bring it to a standstill, before he attempted to get off. Now, I do not say that this was negligence per se, that it was such negligence as would absolutely bar a recovery, but I do say that the only reasonable presumption that could be drawn from this state of facts is that of negligence; that it would be intolerable to permit a jury to say that to attempt to get off a moving train in the dark in that manner and under those circumstances, did not raise a presumption of negligence.
Concede that the case should go to the jury to determine whether it was such negligence as would bar a recovery, but that the facts as told by himself raised a presumption of negligence against the plaintiff, I think is beyond dispute.
In his passage from the top of the car to the ground, Blair had many things to contend against. Accidents of this character will occur from various causes. One man is injured because the hand hold is defective or broken, or gone. Another is injured because the stirrup is defective. Another,because when he steps down on to the ground, he steps on a pebble or in a small hole, and his foot turns and he is thrown under the train. There are a hundred different ways wherein in attempting to get off a moving train, andjespecially in the night, an injury may occur to the party, and where ordinary care and caution for his own safety would require that he should, if he had the power to do it, stop the train, bring it to a standstill, so he might alighUin safety; and beyond all question the burden of proof should rest upon him who voluntarily and unnecessarily runs such a risk; and giving the jury the'right to find otherwise is in violation of the rule as heretofore laid down by. this court, and which this court intends to follow until the Supreme Oourt holds that it is wrong. In the opinion of a majority of this
There is still another question, that is as to the amount of the verdict, or damages. The jury awarded to the plaintiff the. sum of $8,000. It seems that his hand had been injured before, and that for a year he had but partial use of that hand, The bones of one if not two of the middle fingers had been broken just above the knuckle joint,and he could not shut the hand tight, and the other fingers were withered somewhat. For the loss of this imperfect left hand, the jury awarded him the sum of $8.000,and we all think that this was excessive, and could have been given by the jury only through prejudice or passion, But this matter has been arranged and a remittitur agreed upon, so that the question as to the charge may be the sole question presented to the Supreme Court for revision, and the case is reversed, therefore, solely on that one ground.