Lead Opinion
Defendant’s first assignment of error in this court is that there was “error in admitting into evidence oral and documentary proof relating to the safety rules of other railroads.”
There is substantial evidence in the record tending to prove that decedent, while engaged in his employment by the defendant as a member of a switchyard crew, met his death in an unsuccessful attempt to mount (that is to get onto) the stepboard upon the leading end of a locomotive (in this instance the rear of the tender) while it was in motion.
The second amended petition alleges in part that “defendant was * * * negligent * * * in failing to promulgate and enforce * * * a * * * ruie specifically pro
Over the objection of defendant, plaintiff offered in evidence portions of the rules of eight other railroads. These included four of the five principal railroads operating in and around Cleveland and two smaller railroads operating in and around Cleveland. In each instance the portions of these rules which were offered either specifically forbade the mounting of the step-board upon the lead end of a locomotive in motion, or in effect so provided, as by forbidding even the riding on such footboard or the getting onto an approaching engine.
On cross-examination of one of defendant’s witnesses, it was brought out over objection of defendant that the witness did not know of any railroad other than defendant which did not forbid the mounting of the stepboard upon the leading end of a locomotive in motion. However, the testimony of that witness only indicated that he did not know whether other railroads did forbid that practice or what their rules provided with respect thereto.
By reason of the manner in which objection to admissibility of this evidence was made, the only question in the instant case with regard to any claimed error in its admission was whether these portions of the rules of other railroads were competent evidence for any purpose.
The safety rules of the defendant were admitted in evidence without objection. See Cincinnati Street Ry. Co. v. Altemeier, Admr.,
“104. Employees are not permitted to ride on the front end, or tender end sills, or steps, of locomotives in road service, except when performing station work, or when work between stations requires a man on the leading end of a locomotive.
“105. When working on or about footboards of locomotives, the following practices are forbidden—
“a. Crossing over or around the drawbar, or stepping from one footboard to another when the engine is in motion.
“b. Remaining on leading footboard while coupling engines to cars.
‘ ‘ c. Occupying leading footboard when moving over street or highway crossings.
“d. Riding on front of engine not equipped with footboards.
“e. Standing between rails when about to board footboard of engine as it approaches.”
Rule 103 apparently applied only to engines and cars which were coupled together (see rule 105b). It was not contended by defendant that rule 104 was applicable probably because the locomotive in the instant case was engaged in switching and not “in road service. ’ ’ There was no evidence in the instant case which would have made rules 105a, 105c or 105d applicable. Rule 105b had no application in the instant case because decedent attempted to mount the stepboard at a switch leading from the main track onto a siding. The engine was then to proceed over the switch onto the siding and follow a car which was moving away from the locomotive and some distance up the siding on its own momentum. The coupling of the engine to the car would not have taken place until the engine reached the car. It was only “while coupling” the engine to
By implication, rule 105e apparently recognized that an employee might properly board the footboard of an approaching engine except in the manner forbidden by that rule. Likewise defendant’s engineer testified that there was no rule of defendant at the time of decedent’s death which forbade an employee from doing that and that employees of defendant frequently did mount leading footboards of approaching locomotives.
Thus, the rules of defendant did not forbid a member of a switching crew from mounting the stepboard upon the leading end of a locomotive, as the jury could have determined on the evidence that decedent attempted to do when he was killed.
Assuming that the jury did determine that decedent attempted to mount such stepboard in a manner not forbidden by defendant’s rules, the question still remained whether defendant was negligent in failing to promulgate and enforce a rule forbidding that practice.
In work dangerous to employees unless rules are made for its conduct, it is the duty of an employer to exercise reasonable care in promulgating and enforcing rules to protect such employees against dangers incident to such work. Railway Co. v. Murphy, Admr.,
There are authorities indicating that, in determining whether an employer has exercised such care, evidence may be received as to rules adopted by other employers to provide such protection. Reed, Admr., v. Davis, Dir. Genl.,
Furthermore, it has been held that the fact, that the railroad has promulgated rules to provide such protection, does not necessarily take away from the jury the question whether such railroad has exercised the degree of care legally required of it (Wright v. Chicago, Rock Island & Pacific Ry. Co.,
“If a rule is actually made the question remains whether it. is proper and sufficient under the circumstances, for due diligence is not satisfied by an insufficient and inadequate rule.”
Whether, in a particular case, an employer has exercised such care, when the rules adopted by the employer did not avoid exposing his employees to a particular danger, will depend upon factors such as the potential danger apparently involved (see Soltz v. Colony Recreation Center,
Although not always mentioned, a consideration of factors such as these has undoubtedly influenced this court in recent decisions holding that, in certain other types of negligence cases, there was no evidence of negligence for submission to the jury. See for example Kimball v. City of Cincinnati,
It is obvious that anyone mounting the leading step-board of a moving locomotive is exposed to a great potential danger and that in a switchyard, even where this is done from the side of a track, such one will not always be able to avoid that danger by the exercise of ordinary care. However, there are many potential dangers in the performance of useful work which cannot be avoided if that work is to be done. This is particularly true in the operation of a railroad. There are also many such dangers which cannot be avoided without seriously interfering with the performance of useful work in a reasonable manner. A jury or even a court might well determine that there was no duty to do something which would avoid those dangers if the doing of that something would seriously interfere with the performance of useful work in a reasonable manner. Thus, in effect, the court or jury would be determining that it would be impracticable to do that something in order to avoid those dangers.
It is apparent therefore that the specification of negligence hereinbefore quoted raised in the instant case the question whether a rule, forbidding an employee in a switching crew from mounting the step-board upon the leading end of a moving locomotive, would interfere with the performance of defendant’s work in a reasonable manner and thus be impracticable. If it was a fact that other railroads engaged in similar work had such a rule, that fact would tend to prove, by justifying an inference, that such a rule would not so interfere and would not be impracticable. The evidence objected to was evidence of that fact. It was therefore clearly relevant. However, it does not
This court has recognized that custom and usage may be a circumstance to be considered by the jury in determining whether a defendant exercised ordinary care. Ault v. Hall,
However, in determining whether a defendant exercised that care which an ordinarily and reasonably prudent man would have exercised under the same or similar circumstances, jurors and courts are usually called upon to inquire into matters within the common knowledge of men of average general information. Thus, in the instant case, in determining whether an employee mounting the leading stepboard of a moving locomotive would be exposed to a great potential danger or that such one would not always be able to avoid that danger by the exercise of ordinary care and by obeying the defendant’s rules, the jury was called upon to inquire into such matters. Because, in such an instance, it would tend to inject collateral issues into a case and divert the attention of the jury from more important issues, testimony which would be relevant on such an inquiry might well be excluded. See Jones v. Village of Girard,
Where evidence is admitted as to what other persons did, there is always likely to be a question whether the circumstances under which each of those other persons did what the defendant is claimed to have negligently failed to do or did not do what the defendant is claimed negligently to have done were the same or similar to the circumstances which confronted the defendant. Also, there is likely to be a question whether some of or all those other persons were ordinarily and reasonably prudent persons; even whether some or all
On the other hand, where, in determining whether a defendant exercised ordinary care, the jury and the court must inquire into matters which are not within the common knowledge of men of average general information, evidence on such matters may be particularly helpful to them. In such an instance, the trial court may well decide that the advantage of such helpful evidence may outweigh the disadvantage of running the risk of injecting collateral issue's into the case. Cf. Brewing Co. v. Bauer,
In Willis v. Pennsylvania Rd. Co., 122 F. (2d), 248, it was stated that “the practice at a single yard of another railroad is not competent proof on the issue of whether defendant’s practice was negligent.” However, that case is distinguishable because, as the court pointed out in its opinion, the practice of the defendant railroad in that case represented as a matter of law the exercise of ordinary care. Cf. C. & H. C. & I. Co. v. Tucker,
In the instant case, no question has been raised by defendant as to any failure of plaintiff to plead the custom or usage of other railroads. We therefore express no opinion as to whether it was necessary to do so. Cf. Bosjnak v. Superior Sheet Steel Co.,
With respect to the defendant’s first assignment of error, we are of the opinion that the trial court exercised its discretion reasonably in admitting the evidence objected to by defendant.
In its second assignment of error in this court, defendant advanced as a ground for reversal that there was “failure of proof on an essential element of damages, to wit, * # * no evidence of the age and expectancy of the widow.”
As the authorities cited by defendant hold, the widow’s life expectancy, as well as the life expectancy of the decedent, was a fact which the jury should consider in determining the pecuniary injuries sustained by the widow. Her husband’s death could obviously not deprive the widow of any amount which he would have had only after her death.
Evidence as to the age of the widow in years would only be important on the question as to the probable life expectancy of the widow at the time of decedent’s death.
In the instant ease, the widow was present in court and testified. Thus the jury had an opportunity to see her and hear her testimony.
We all know that life expectancy may depend on many factors other than age. Furthermore, it is usually possible to estimate with reasonable accuracy the age in years of a person by observation of that person. The jury had that opportunity. If the defendant considered that the widow’s age in years was a fact which would tend to prove that her life expectancy
In our opinion, where a widow, who is the sole beneficiary of a wrongful death claim, testifies before the jury and the defendant neglects to cross-examine her as to her age in years, a substantial verdict for the plaintiff should not be set aside merely because no evidence was offered by the plaintiff as to the age in years of the widow.
Defendant’s third and final,assignment of error in this court is that “the verdict of the jury was rendered under the influence of passion and prejudice.”
Although it found that the amount of the verdict was excessive and ordered a remittitur which was agreed to, the Court of Appeals also specifically found “that * * * the fact that said judgment was excessive * * * was not due to or caused by any passion or prejudice on the part of the jury.” Therefore it is sufficient to state that, in view of our conclusions with respect to the other errors assigned, this court could not sustain this assignment of error without departing from the uniform, although not always unanimous, relatively recent holdings of this court. See for example Chester Park Co. v. Schulte, Admr.,
Judgment affirmed.
Concurrence Opinion
concurring. I desire to state the basis of my concurrence. It is my view that, although actual custom or usage of others under similar circumstances is not controlling on the question of the exercise of due care of parties litigant, nevertheless evidence of such custom or usage is competent to be considered by a jury in determining the propriety of a specific type of conduct. 38 American Jurisprudence, 1015, 1016, Sections 317, 319.
In my view, the evidence, under such circumstances, must be confined to the actual custom or usage of others rather than to rules purporting to govern conduct under consideration. Eules and actual practice may differ widely. It is the latter and not the former which must be the test in dealing with standards of conduct.
In the leading case of Langner v. Caviness,
“It is well settled, subject to certain qualifications, that upon the issues of negligence and contributory negligence evidence of custom in the performance of similar acts, while not a conclusive test, is generally admissible. * * * Webber v. Larimer Hdwe. Co.,
See, also, O’Day v. Shouvlin,
I am firmly of the opinion that ordinarily usage and custom may be shown for comparison with conduct under consideration but not the naked rules adopted by another for comparison with conduct under consideration. However, in the instant case, the amended petition charges that the “defendant was * * * negligent * * * in failing to promulgate and enforce a rule * * * specifically providing that no member of the [train] crew should be permitted to board a locomotive or mount its stepboard upon the leading end thereof when said locomotive is in motion.”
Since the issue in the instant case is the feasibility of adopting a certain specific rule for the safety of the employees of the defendant, the fact that other railroads have adopted such a rule becomes a proper subject of inquiry and consideration, not as setting a different standard of conduct, but as bearing on the propriety of the adoption of such a rule by the defendant.
The reverse of a similar situation was presented in the case of Egelston, Admx., v. New York, Chicago & St. Louis Rd. Co.,
In the trial of that case, the defendant attempted to show that several other railroads in the same general area had no such rule or regulation with reference to bunk cars, and then offered to show by the witness that the rules generally, so far as he had observed them on other railroads, were not different from the rules and regulations provided by the defendant for the care of bunk ears or cabooses. The trial court excluded this proffered evidence. The Court of Appeals held that such evidence was competent and that its exclusion constituted prejudicial error.
So, in the instant case, as I view it, the evidence as to the rules of other railroads was admissible under the limited issue made by the pleadings. 'For these reasons I concur in the instant case.