Holmes v. Railway Co.'s

NEGLIGENCE-RAILROAD LAW.

[Lucas Circuit Court, January 22, 1897.]

Haynes and King, JJ.

CRITT HOLMES V. THE PENNSYLVANIA Co. & THE C., H. V. & T. Ry. Co. PLAINTIES CANNOT RECOVER FOR INJURIED WHEN IN HIMSELF WAS CARELESS. In an action by a switchman against a railroad company for injuries received by falling into an ash pit while in the course of his employment, such plaintiff will not be entitled to recover where the testimony clearly shows that he was careless and does not show any excuse for being careless at that point of time. KING, J.

Mr. Holmes was in the employ of The Pennsylvania Company, and it owns a railroad running into this county, and having certain tracks and yards. He was employed as a brakeman. He began working for this company in August, 1894, and he worked up to the 30th of November, when he was injured. He was employed in the yard, as a switchman, socalled in coupling and uncoupling cars and he attended to the yard worl generally. This yard is located in the northerly part of the town, on the river bank, and near what is known as the Pennsylvania depot. Mr. Holmes had been in the employ of other railroad companies and had worked in that capacity for about thirteen years prior to this injury. On the right in question he was directed, by the conductor in charge of a switching train, to run across the yard where they were switching cars, to the west side of it, or-in the language of the switchmen, "towards Summit Street"-and swing his lantern and warn the engineer to slack his train or stop, as he had gone far enough. The engineer was not stopping as it had been expected he would. From the position that Holmes occupied, the engineer could not see the signal-he would have to go out further from the train, and the conductor told him to run across towards Summit street and swing him down. He started to run down in that direction--the direction in which the train was going-and ran along on the track for a few rods, far enough to pass two cars which were there, and then turned to the left, toward Summit street, and ran off in that direction to give this alarm to the engineer; and, while running, or walking rapidly, he fell into what is known as an "ash-pit." The ash-pit which is alleged in the petition and shown on the plat, was erected, and maintained by the Hocking Valley Railway company, which also owned and controlled at least two railroad tracks on that side of the yard: one, known as the "dock coal track" and the other as the leader," which ran to a turn-table and thus connected with the building in which they stored the engines. The turn-table was perhaps one hundred feet from the ashpit, and Holmes, as I say, had worked in this yard three months and a ha. prior to this injury. On the night in question-for it was in the night he had been working around there and his light had begun to grow dim and he left his train and passed across the tracks to a house known as the "sand house"-which is situated on the edge of the bank. a somewhat steep bank, which raises from that yord up to Summit street, and at the foot of which rise is the house called the rond nouse. He went over into that house, to fix his iame, and, just before he was ordered to give this signal, he had come back from out of the sand-house and passed over the two tracks in question to the track upon which this train

Lucas Circuit Court.

was, when the conductor said to him: "Run down there toward Summit street and swing the engineer down," and he started to do so, and ran down the track in the direction in which the engineer was going, until he had passed these two cars and then turned to go towards the bank. In going to the sand house, to fix his light, and return as he did, and in going to the sand-house and returning at any time he would pass, necessarily between the turn-table and the ash-pit, and would leave these objects at about the same distance on either hand. He testifies that he went pretty near the center. He testifies further, however, that notwithstanding his experience in the yard and notwithstanding the fact that he had been over to the sand-house that evening-and on two other occasions to get sand-that he never knew there was an ash-pit, at that point, until he fell into it and was injured. He testified that he knew what an ashpit was; that he had seen them on other roads and he knew that they were used by railroad companies, for the purpose of dropping the ashes from the engines when placed over the ash-pit; that the ash-pit was of about the width between the rails of the track, about three and one-half feet deep and about the length of a car-which would make it in the neighborhood of thirty feet long, or more, so that in daylight it would be an obstruction to travel, and would be observable by any person who used his senses.

He cileges as one ground of negligence, that these companies did not keep light out; but he also alleges that it was the property of the Hocking Valley company, and, I may say here, therefore no obligation rested upon the Pennsylvania company to keep that lighted, unless that track and that ash pit were a part of the tracks which they used in the prosecution of their business. There is no evidence in the record before us that they ever did use that track, or that ash-pit, in the prosecution of their business; so that it may be concluded, on this point, that it was not the duty of the Pennsylvania company to keep it lighted, and it was not the duty of the Hocking Valley company to keep it lighted for the benefit of the employees of the Pennsylvania company. On that point I think there can be no question.

In the progress of the trial in the court of common pleas, when the evidence offered by the plaintiff on his own behalf closed, the court, on motion of both the railroad companies, defendants, instructed the jury to return a verdict for the defendants. Mr. Holmes prosecutes this petition in error to reverse that action of the court of common pleas. The court based its action upon the ground that the evidence did not show that the Pennsylvania company used this track and ash-pit, or had any control of it; and did show that the plaintiff was not an employee of the Columous, Hocking Valley and Toledo railway company, and therefore the Columbus, Hocking Valley and Toledo company owed him no duty which it had violated.

As to the holding of the court upon the question of the Hocking Valley Company's liability, we think the court based its ruling upon the correct ground, and we are of opinion that the court did not err in its final conclusion of the case; and we think we are aided in this by reference to another part of the record. The plaintiff himself testifies upon the subject of his injuries, on pages 15, 16 and 17 of the record and testifies as to how he was injured. In the first place, he said he was in a hurry. He did not say he was walking or running, but he says he was in a hurry:

Q. Your lantern was lit? A. Yes, sir.

Holmes v Railway Co.'s

2. Your la@tern was burning brightly. wasn't it? A. I ad just fixed it.

tion

Q. It was burning tightly: A It was burning.

Then he tells bout the two cars, and about going over the eleva

It is shown that one of those tracks was elevated about a foot above the ther two.

2. In going ver that clevation you didn't trip-your eyes-you were looking straight ahead? A. I suppose I was, yes and I was watching out for the head-light, to give the engin a s guɛ!

Q Were you looking straight ahead, in order to keep from stemb'ing A. No, I don't know as I was, the ground looked aîl alike. 2. Did you go over that elevation sidewise? A. No, I went over frontways.

With your lantern in your hand A. Ia my right hand. You were looking directly tower Summit street, were vɔu? A. No, sir; I was watching to see when I got u cver the cleation, we watching the head-light, and I suppose i was swingingy night hand, that way.

And he gives an illustration of how he was swinging ..

Q. How far is the ash-pit from this elevated road? A. It is orly a few feet.

And then counsel inquire:

Q. You say you were looking towards Summit stree? A. I didn't

say so.

Q. You were looking towards your engine, were you not? think I was.

And he finally says:

A. I

Q. You were looking north, towards the engine? A. I was trying to get a signal, to get some response to ny signal.

2. It is not true that you were looking north, to the engineer? A. I think my head was turned that way.

2.

our head was turned north to the engineer? A. Yes, sir. 2. Then you went down into the ashorit without looking where you were going, and with your eyes north, looking towards the engineer? I think that is about the way of it.

Regardless of any theory as to how these companies occupied the yard, we think that testimony shows conclusively, the the plaintiff rself was careless, and it does not show any excuse for being careless at tha point of time.

There is an argument made here that these hacks were used in coxmon by both of these companies. It is not clear, from the record, just what use either company did make of those two extra tracks. It is clear as I have already stated-that those belonged to the Pocking Valley company, who maintained them for their se. The Pennsylyani Company does not seem to have had any use of the asnit, tura

and engine-house, but they were user exclusively by the Hocking ey company; however, whether the Pennsylvania company did not cnetimes un over those tracks, is not so clear. There might be some debt whether the Pennsylvania company did not owe some duty to its employees with respect to the detection of hidden dangers, ceret defects and some things of that sort, and it is nɔlear that they did not owe some duty to their employees, even when their employees were on those tracks, which were said to belong to the Hocking Valiey company; but

Lucas Circuit Court.

it is evident that the plaintiff does not bring this case within the rule that is laid down upon that subject, to authorize him to recover against the Pennsylvania company for any neglect on his part. This rule has been stated several times; we refer to Nat'l Mal. Castings Co. v. Luscomb, 6 C. D., 313, and following, and the 49 State, page 607, quoting from "Wood's Law of Master and Servant," where it is said:

"The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions: 1. That the appliance was defective. 2. That the master had notice thereof, or knowledge, or ought to have had. 3. That the servants did not know of the defect, and had not equal means of knowing with the master."

There is no doubt here that, if this was a defect, the master had notice of its existence. And there is no doubt, from the plaintiff's testimony in the case, that he did not know of its existence; but that does not dispose of the question, as the court says, he must also show that he did not have equal means with the master of knowing of the defect. This ash-pit was not hidden or secret. In the first place, it may be stated, that it is doubtful whether it would be any evidence of negligence at all that that ash-pit was maintained there in the yard. It is clear, from knowledge which the court has outside of this case, that ashpits are things which railroad companies provide at certain places, and it is clear that they usually provide them where engines are put to be housed, or near some point of that sort, so that before they run in the engine to be housed, or repaired, they clean it out and have some place to drop the ashes under the engine. So we think that it was a necessary thing to have; that it could not be housed in, but it had to have an opening at either end of the track for the cars to go through. According to the undisputed testimony in the record, it was certainly large. enough to be seen in the daytime, at îeast.

The plaintiff in error was directed to go and give a warning to the engineer to stop. That did not require of him that he should break his neck, or fall into a well-hole, or run against a switch-stand, or against a building-he was to go and do that duty as he would perform any other duty, and to watch and look and see where he was going, He had a light and the means in his hand to see where he was going-he had a lantern, in good condition and burning properly, and all he had to do was to hold that light where he stepped, so that he could see. He says

it was rainy and misty, that it was very dark for a night of that season of the year. So much the more was the duty devolved upon him to use greater care, if he was proposing to run or hurry; he must go along in the yard the same as he would go anywhere else where his duty called him, and take those precautions which men of ordinary care and sense take to protect themselves from danger. There would be no difficulty in seeing this ash-pit (thirty feet long and four and a haif feet wide) if he had been locking. But he swears he was looking elsewhere; he says that he was hurrying forward over these tracks-pitching up and down over the elevated track-a foot or eighteen inches high-with his eyes fixed upon the engine, two blocks away, which he was following up and swinging his lantern as he was running. The conductor told him to go over to the bank, towards Summit street, and swing his lantern. What he had to do was to go over there carefully, and when he get over there, to swing his lantern-that is what he was directed to do, and act to run headlong into something that he did not expect. So we think that upon that ground, for the reason that he was looking at the engine, as he

Street Railway Co. v. Tucker.

swears, and was not looking where he was going, that he clearly contributed to his own injury. He testified to that and there is no dispute as to what he did and therefore the court very properly took the case from the jury, and the judgment of the court of common pleas will be affirmed.

Scribner, Waite & Wachenheimer, Attorneys for Plaintiff in Error. E. W. Tolerton, Esq., for Pennsylvania Company, Defendant in Error.

King & Tracy, for the Columbus, Hocking Valley and Toledo Railway Company.

DAMAGES-PLEADING-EVIDENCE

[Lucas Circuit Court, January 22, 1997.7

Haynes and King, JJ.

THE TOLEDO ELECTRIC ST. RY. Co. v. LULU TUCKER.

1. RECOVERY OF EXPENSES INCURRED FOR ELPLOYING PHYSICIANS Y PERSON INJURED,

In an ection to recover damages for injuries sustained by plaintiff, resulting from a collision of cars on a street railway the plaintiff may recover, as part of her damages, the amount that she expended, and what she may reasonably expect to expend in order to cure herself of such injuries received through the fault or negligence of the defendant.

2. ADMISSION OF EVIDENCE SHOWING WHAT THE EXPENSES INCURRED WERC. In such action, the petition need not allege with definiteness the amount so expended, and in the absence of a motion to make it more definite and certain, plaintiff may introduce evidence showing what the expenses thus incurred were, and it is not error for the court to charge the jury that plaintiff "is entitled to recover for any expense that she may have been to, as shown by the evidence in the case, for medical services or attendance, in endeavoring to cure herself of the injuries which she has sustained.”

ERROR.

KING, J.

Miss Lulu Tucker brought her action in the court of common pleas against The Toledo Electric Street Railway Company to recover damages for an injury sustained by her, which came from a collision of cars on the street railway of defendant below. She set forth in her petition her claim as to the negligence of the defendant company, also the injury which she received, and made some averments as to expenses on her part. To this there was an answer denying all the allegations of negligence, averring that she was guilty of negligence which contributed to the injury, and averring affirmatively that the agents of the street railway company conducted their cars in a safe and proper manner.

On the trial the negligence of the company was not seriously controverted, and upon the argument here, it was conceded that the company were negligent, and were liable. The trial resulted in a verdict in favor of the plaintiff for $3,000. On defendant's motion for a new trial, the court directed a new trial to be granted unless the plaintiff should remit a thousand dollars of the verdict, which she consented to do, whereupon the court overruled the motion for a new trial, and entered judgment for $2,000.