L. S. & M. S Ry. Co. v. Litz. "This request is in substance as follows That if the yardmaster as signed a sufficient number of competent men to do said switching, he was not bound to go with them to see that they did their duty, and was not negligent in omitting to do so. The supreme court having reversed the judgment, with the full record before it, settles the law of the case that the yardmaster is not negligent if he assigns a sufficient number of competent men to do the work, though he does not go with them to see that they perform their duties. The evidence not showing that the yardmaster knew that these men would not do, or were not doing their duty, the necessary implication from the decision of the supreme court in the case reverses the judgment of the court of common pleas, and sets aside the verdict." It will be seen that in that case the yardmaster had assigned a sufficient number of men to do a duty which was assigned to them to do, and it was held that it was not necessary for him to go with them to see that they did their duty, he not knowing that they were disobeying any rules or failing to perform their duty properly; but in the case before us, of course, the foreman in charge of the gang was with the men, and if there was any violation of duty on their part in running these cars, it is presumed, and the testimony in the case shows, that he knew of that violation of duty. It is undisputed in the case, in fact the foreman testifies to it, that these cars were running quite close together, so close, some of the witnesses say, that they bumped together, The foreman says he did not notice that, but that they were very near together and were very near together running over several miles of the track; so that as applied to the facts in this case we are not prepared to say that it would be erroneous to say that he shonld use ordinary care and diligence to secure obedience to the rules and regulations of the company on the part of the employees that were under him. That only requires him to do what any man in like position is always required to do having charge of men and directing them about their work. If he observes that they are doing it negligently, it is his duty to caution them in that respect- not require them or compel them to observe the rules and observe care, but to use ordinary care to secure that result, and then if the men obstinately violate his instructions in that respect, of course, the company would not be liable. In connection with the charge, as I have said, the court was requested to give a large number of written requests before argument. We have examined all those and are not prepared to hold the court was required to give those requests in the form in which they were prepared. Some of them may have been proper if even a word had been changed, but in the form in which they were drawn we think the court was justified in the refusal of those requests, excepting the 27th, and we are unable to see any reason why that should not have been given. We find nothing in the general charge that would have the effect to justify the refusal of that point, if the general charge could have cured the error of refusing to give this. This request is as follows: "If the jury find that the foreman, McCann, was negligent on the occasion in question, in allowing the handcars to run too near together, and that the plaintiff knew, or by the exercise of ordinary care might have known how near together the cars were running, it was his duty thereafter to act with reference to such negligence of the foreman, and exercise care with reference to it, to avoid injury to himself. Erie Circuit Court. That, we think, is a universal rule in a case of this kind and that when asked the court should have given a request like that. Now, on an examination of the evidence of this case, which I will refer to before I come back to this charge again, we would not disturb this verdict on the ground that the evidence does not show negligence on the part of the defendant company. The evidence shows, as I have already said, that this foreman, the representative of the company at this time and place, was with these men and in charge of them and returning home. It shows according to his own testimony that he knew of the continued violation of the rule of the company, and that he knew that these cars were running at a very close distance apart, not more than a few feet apart, he says, and the evidence is overwhelming on the part of all the witnesses who testify on this subject that all the three cars were close together, so close that if an accident happened to any of the cars in the line by which it was disabled or anything might be thrown from it to the track, that the cars following it could not have stopped before they were run against or over the obstruction. We think the evidence sustains the claim also that the fellow servants of the plaintiffs were negligent in their operation of these handcars, and that the claim made here by the plaintiff in error is not sustained by the law, if the negligence of the fellow servants concurs with the negligence of the principal in producing an injury, that the defendant would not be liable if the plaintiff himself was free from negligence contributing to produce the injury. The railway company in this case is responsible for the negligence of the foreman, and this rule is well settled by Railway_Co. v. Lewis, 32 O. S., 196; Berea Stone Co. v. Kraft, 31 O. S., 287; Railway Company v. Ranney, 37 O. S., 665. It is also an equally well settled principle of law that where the negligence of the principal and of a fellow servant concurrently produced an injury to an employee who is himself without negligence, that such injured employee may recover. Bailey's Master and Servant, p. 439; 37 O. S., 549; 45 O. S., 11. We think that principle is well settled both in the general law of negligence and in this state, but these observations will not, in our judgment, dispose of the questions that are raised here. The court was asked to give before argument a request numbered 18, which it gave: "If the plaintiff was pumping the motor upon the second car, and so aiding in running it too near the first car, and so running it too near the first car was negligence on his part and such negligence resulted directly in the plaintiff's injury in whole or in part, he was himself guilty of contributory negligence, and the verdict should be for the defendant." It will be observed that that request alludes to the plaintiff as pumping the handcar. In his general charge the court gave this: "But the mere fact that he was riding upon a car which was run and managed in a negligent manner in violation of the rules of the company would not be sufficient to charge him with contributory negligence in the absence of proof that he assented to or took some part in such negligent acts or violation of the company's rules." That clause which I have read is specially excepted to. If that were to be understood by the jury as meaning that if the plaintiff himself had exercised ordinary care and was not a party to the contributory negligence of his fellow employees, that he might then recover, it would be correct, but if it was understood and taken in connection with request L. S. & M. S. Ry. Co. v. Litz. No. 18, it might well be understood that the fact that the plaintiff was not pumping would relieve him from any responsibility of the running of that car, and that he would not himself be negligent if his fellow employees were actually moving the car and he standing up doing nothing, it would be erroneous in our judgment. An employee is bound to exercise ordinary care to ascertain and to observe the rules of his employer, and it will not excuse him for a violation that the employer or his agent superior to the plaintiff has at some time disobeyed such rules. "If an employee has suffered an injury brought about by violation of the plain instructions of his principal, he cannot hold his principal liable therefor." 33 O. S., 227. "If an employee with knowledge of the habitual and continued negligence of his superior fellow employee in some matter acquiesces therein and continues in the service of his employer without objection or effort towards correction of such neglect, he thereby waives his right against the company and takes the risk upon himself." 33 O. S., 468. We think the evidence in this case fairly shows that the defendant in error knew the rules of the company. It is true he testifies he did not know them and had not been informed of them, but other witnesses testify that he was informed, and nearly all the witnesses in the case, who were like himself section hands, testify to a knowledge of this rule relating to the distance which handcars should be kept apart; but if the rule was unknown to the plaintiff the duty still remained that those propelling the handcar should observe ordinary care in the conduct of that work to avoid injuring others or themselves. The evidence does not perhaps agree as to whether the plaintiff was pumping or not, but we think a fair preponderance of it is to the effect that he was not pumping, and we think that the evidence discloses simply this state of facts: Here were eighteen or twenty men that divided themselves into three parties and mounted three handcars for the purpose of returning home. Their duty on the handcar was to propel this handcar themselves and whatever freight they might have along in the way of tools or otherwise, to propel it safely if possible to the place of destination, and that duty, in the manner in which those men were conducting this work, devolved equally upon all the men. That four men on the handcar should assume the burden of propelling it and plaintiff stand idly by, would not relieve him from the same responsibility which rested upon the others to observe care in propelling that handcar. Again, another duty devolved upon those men. Beside the mere act of propelling the car, they were to watch out for obstructions upon the track, for trains or other cars that were ahead. The plaintiff upon the second car knew there was a handcar ahead of him, and while he testifies that he did not see the handcar which everybody else on both cars say was near to the second car all the way, it was his duty to have looked, and his position upon the handcar was such as to give him special opportunity to perform that duty, to wit, to engage in the business of watching out, which he could do better than the men who were pumping; so that all these duties devolved equally upon all the men upon that handcar. This man was not a passenger, he was not a man that was being accommodated with a ride, he was there as every other man on that car was, to get it home and get it safely home, and the duty devolved upon him to look out to assist his fellow workmen, if necessary, or, if they relieved him of that dnty to perform the other duty of watching out so that all of them might safely be returned to their destination. We think by the charge of the court the jury were given to understand that if he stood by, the jury night Erie Circuit Court. find him not guilty of negligence, while it might find nis coemployees guilty of negligence who were actually pumping the car, and for these reasons we think the charge in the part which I have referred to was misleading. But, while the jury found in this case for the plaintiff they passed upon this exact question and while it was not specially referred to in argument, we think the jury found for the defendant, and in such a manner that we shall dispose of this case on this ground solely for the purpose of enabling the defendant in error to take an advantage of this decision which he could not perhaps otherwise take, by testing its correctness in the higher court. Question No. 8 was propounded to the jury in connection with the general verdict, and is as follows: "Did the men upon the second car fail to exercise ordinary care in running their car too near the first car?" Answer: "Yes, and without reproof by the foreman." Question No. 9: "Did the men upon the third car fail to exercise ordinary care in running their car too near the second car?" Answer: "Yes, and without reproof by the foreman." The addition of the words "without reproof by the foreman" is a matter of no consequence. As we have already said the evidence, we think, would fairly support a verdict finding that he was guilty of negligence but the jury have said that the men (which the plaintiff) upon the second car failed to exercise ordinary care in running their car too near the first car. If that was so, the judgment in this case ought to have been for the defendant below and in favor of the plaintiff in error, since the special findings of fact must control the general verdict, and the finding that the men upon the second car failed to exercise ordinary care is equivalent to finding that the plaintiff is guilty of negligence contributing to his injury, in our judgment; and we hold that for that reason the judgment in this case must be reversed, and that as the court of common pleas should have rendered a judgment in this case upon that special verdict of the jury for the defendant below, this court will proceed to render the judgment which the court of common pleas ought to have rendered, a judgment for the plaintiff in error and against the defendant in error. Defendant in error excepts. Hon. C. P. Wickham and George E. Reiter, Attorneys for Plaintiff in Error. R. B. Fisher, Phinney & Merrill, and Theodore Alvord, Attorneys, for Defendant in Error. ' Kuhn, Arbuckle et al. v. The Woolson Spice Co. et al. EVIDENCE-INJUNCTION. [Lucas Circuit Court, April 9, 1897.] King, Haynes and Parker, JJ. THOMAS J. KUHN, JOHN ARBUCKLE ET AL. V. THE WOOLSON SPICE Co., THE AMERICAN SUGAR Refining Cơ. et al. 1. EVIDENCE OF CONVERSATIONS BETWEEN PARTIES. Conversations between parties interested upon one side of a controversy, at which the other party was not present and had no means of knowing of it, would not be competent to slow the actions or intention of an opposite party. 2. ENJOINING A COMPETITOR FROM MANAGING ITS BUSINESS. Plaintiffs, who are the owners of a large and profitable business, being also the owners of a certain number of shares in the defendant company, a rival concern, seek to enjoin it from managing its own business according to its own judgment, and from selling its own product at such a price as to entail a loss upon said defendant company and its shareholders: Held, that the interest of the plaintiffs in asking for an injunction, though owners of stock in defendant company, was plainly not in preserving the value of defendants' stock, but was prosecuted for its own interests, it being a rival concern. Such action not being bona fide for the benefit and interest of the stockholders whom plaintiffs claim to represent, a court of equity will not enjoin the defendant company, a competitor, from managing its business according to its own judgment. KING, J. This case is presented to us on a motion to suspend an order made by the court of common pleas dissolving a temporary injunction allowed in the case upon the filing of the petition in the court of common pleas. That petition was filed there on the 13th day of January, 1897; and upon the filing of it there was allowed, by Lindley W. Morris, a judge of the court of common pleas, an injunction as prayed for, to remain until the further order of the court, upon the plaintiffs giving bond, conditioned according to law, with sureties to the satisfaction of the clerk, in the sum of ten thousand dollars. The injunction prayed for is set forth in the first, second, third and seventh paragraphs of the prayer, and reads as follows: "Plaintiffs therefore pray : "First-That an inquiry and accounting may be had as to the loss and damage suffered by said The Woolson Spice Company by reason of the reductions in the price of its product, and that said company and said defendants controlling its said policy may be enjoined from selling its said coffee at such price as to entail a loss upon said company and its shareholders. "Second-That the defendants, Alvin M. Woolson, William A. Brigham, Lawrence Newman, James Secor, John B. Ketcham, Rudolph A. Bartley, Graff M. Acklin, John Berdan and Frank Williams, may be restrained from acting in any way as directors of said The Woolson Spice Company. "Third-That said The Woolson Spice Company be restrained from registering any transfer of said seventeen hundred and thirty-nine shares of said stock so as aforesaid purchased by said The American Sugar Refining Company, until the further order of this court and until such time 7 Dec. 19. |