Railway, L. & P. Co. v. Barr. STREET RAILWAYS. [Richland (5th) Court of Appeals, February Term, 1914.] Voorhees, Shields and Powell, JJ. MANSFIELD RY. L. & P. Co. v. JOHN E. BARR. 1. Electric Railway Required to Protect Lineman Repairing Wire from Injuries by Passing Cars. Where a repairman is sent to adjust a trolley wire, it is the duty of the railway company in the exercise of ordinary care to make proper provision to protect him from injury from cars using the track over which the wire upon which he is at work is strung. 2. Motorman not Fellow Servant of Lineman. A motorman running a car upon such track under the direction of his conductor is not a fellow servant of one engaged in repairing the trolley wires. 3. Negligence of Lineman Repairing Trolley Wires Jumping from Perch on Approach of Car in Dangerous Proximity Question for Jury. Where a repairman so engaged discovered a car bearing down upon him and in dangerous proximity, it is for the jury to say, under proper instructions from the court, whether or not he was guilty of contributory negligence in jumping from his perch, thereby sustaining the injuries of which he complains. 4. Verdict for Personal Injuries not Set Aside unless Excess so Great as to Shock Sound Judgment. A verdict for personal injuries will not be set aside simply because it is excessive in the mind of the court, but only where the excess is so great as to shock sound judgment and a sense of fairness toward the defendant. [Syllabus by the court.] ERROR. McBride & Wolfe, for plaintiff in error. W. S. Kerr, for defendant in error. PER CURIAM. A verdict of $8,500 was awarded the defendant in error, as damages for personal injuries alleged to have been sustained by him as a result of the alleged negligence of the plaintiff in error, while he was in its employ as a repairman of its electric lines. To state the cause of action more fully, the plaintiff in his petition filed in the court below alleged: "That on October 9, 1909, and prior thereto he was em Richland County Appeals. ployed by the defendant as a repairman on its lines in Mansfield, Ohio, and to do such other work and service in connection with the maintenance and repair of its lines as might be assigned him by the defendant. In doing said work for the defendant he was required, when it became necessary, to go up on top of a repair car and from that position repair wires, switches, etc. On said October 9, 1909, there was a break in the wires of said defendant's lines on Spring Mill street of said city at or near the point where Mulberry street and Spring Mill street branch. In the usual and ordinary course of his duty he went to the break on a repair car, and went on top of said car, which was about twelve feet above the street, to repair said break and while so engaged and without any fault or negligence on his part the repair car, upon which he was standing in doing the work aforesaid, was run into by one of the defendant's cars from the Shelby line. "That when he saw that the Shelby car was going to strike his car, he was standing on the top of a platform or box of sufficient elevation above the roof of the car to enable him to reach and do the work he was doing and being afraid that he would be thrown from the box or platform to the street by the collision of the cars he jumped from the platform or box to the roof of the car and by the shock of the collision he was thrown from the roof of the car to the brick street. "That he struck on his feet on the brick street from a dis tance of about twelve feet and that both ankles were fractured that the bones of his ankles have grown together where some of the fractures were, and that he is now unable to walk but with great difficulty and he is permanently disabled from doing manual labor. He suffered great pain and he is unable to walk without great pain and suffering in his ankles. He expended the sum of $100 for medical services in attempting to be cured. "That the defendant by its servants negligently and recklessly ran the said Shelby car onto and against the repair car on which he was working and thereby caused the injuries of which he complains; that the said Shelby car was under the Railway, L. & P. Co. v. Barr. charge of a conductor who had control of the movements of the same, and that a motorman was employed on said Shelby car who was under the control of the conductor and that said conductor and motorman negligently and recklessly ran said Shelby car onto and against said repair car as alleged; and he avers that the officer or agent of the defendant who has the supervision and control of the movement of the cars on the defendant's lines, with knowledge that plaintiff was engaged in repairing the lines as alleged and that in doing so it was necessary that said repair car occupy the track, failed and neglected to notify or warn the conductor on Shelby car of this fact, whereby the injury to plaintiff would have been prevented. He says the car on which he was working was in sight of the conductor and motorman of the Shelby car and that he could be seen far enough to stop the Shelby car if they had exercised reasonable care in the premises. The defendant is a corporation organized under the laws of Ohio, and as such operated a city and suburban railway in the city of Mansfield and to Shelby as alleged. Wherefore judgment is prayed for in the sum of $10,000." By answer the defendant admits that the plaintiff on October 9, 1909, and prior thereto was employed by it as stated in said petition, that in doing said work for the defendant he was required and it became necessary to go up on the top of a repair car and from that position repair wires, switches, etc.; that on said October 9, there was a break in the wires of the defendant's wires on Spring Mill street; that he went to the break on a repair car, and went on top of said car to repair said break, but it denies all the other allegations in said petition. For a second defense the defendant says "that the plaintiff's injuries, if any were received, were caused by his own fault and negligence directly contributing thereto in jumping from said car and in taking no precaution whatever for his own safety." The reply is a general denial of the contributory negligence charged. 6 O. C. C. Vol. 36 Richland County Appeals. Upon the issues thus made by the pleadings, the cause was submitted to a jury resulting in a verdict for the plaintiff. A motion for a new trial was overruled and judgment was entered upon said verdict. A bill of exceptions was taken containing all the evidence offered upon the trial, including the charge of the trial court, and by a petition in error said cause was brought into this court for review. There is little or no controversy between the parties hereto as to the facts leading up to the injury here complained of. The employment of the defendant in error by the plaintiff in error to repair the wires on its lines, and, if necessary, to make such repairs on the top of its repair cars, that in pursuance of such employment he went on top of such car to repair a break in the wires of the plaintiff in error at the time and place stated, and while he was so at work an interurban car on the Shelby line of the plaintiff in error, operated by a motorman in its employ, collided with said repair car, is admitted; and while it is not contended that the defendant in error was not injured thereby, it is insisted by the plaintiff in error that whatever injuries were sustained by the defendant in error were caused by his own negligence and carelessness, and that therefore said company is not liable in this action. It is hardly necessary to remark that if the evidence fairly shows the facts to be as claimed by the plaintiff in error, namely, that the defendant in error's negligence directly contributed to or was the proximate cause of his injury, or if it should appear by the evidence that the concurrent negligence of both the defendant in error and the plaintiff in error contributed to and produced said injury, then the motion submitted for an instructed verdict should have been sustained and not overruled. An examination into the facts of this case as disclosed by the bill of exceptions tends to show that on the morning of the day mentioned the defendant in error, then in the employ of said company as lineman, seeing the break in the wires of said company at the place mentioned, and upon arriving at said company's office reported the same to the general manager of said Railway, L. & P. Co. v. Barr. company, who personally directed him to repair said break without delay. Acting under such directions he prepared to make such repairs, and soon thereafter took out and employed the use of the repair car of said company used for such purposes, following what was known as the Shelby car of said company, operated on and over the streets in the city of Mansfield, and between Shelby and said city of Mansfield, to the place where the wires of said company were out of repair, and where said repair car stopped on said company's tracks, with its brakes set, to enable the defendant in error, with a helper, to make such repairs. It appears that said repair car was so constructed that it became necessary to use a box on top of the platform of said car to make said repairs, and that such a box was used by the defendant in error for that purpose, and that while on said box at work repairing said wires, with his back to the north, his attention was called by his helper to a Shelby interurban car approaching, when turning around and finding that said car was about to collide with said repair car, he jumped to get down and failing to get hold of anything he fell on the brick pavement and was injured, or quoting from the language of the witness "I turned right around, saw that it was right on to us. and I made a jump to get down and get hold of something and I went on off;" that said interurban car did there collide with said repair car, knocking the latter forward on the tracks of the company some considerable distance from the point of said collision. It further appears that said report of the condition of said wires was so made to the manager of said company about 8:30 on the morning mentioned; that the Shelby car which the defendant in error followed with said repair car to Spring Mill street, where the wires were out of repair, left Mansfield for Shelby at nine o'clock on said morning; that under the schedule time of said company a car from Shelby bound for Mansfield left Shelby at 9:05 on said morning; that such car would. pass the car going from Mansfield to Shelby, if on schedule time, at Spring Mill, where it was the rule or custom to have telephonic communication between the officers or employees of |