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Railroad Company v. Heeter.

as a state. If any money is recovered in this action, it will be paid into the county treasury, because it came from that source.

The statute authorizes the commissioners to bring suits to recover moneys due the county; and we think, bringing this suit in the name of the state-a nominal party merely-does not change the character of the action or deprive the bondsmen of any valid defense.

And if the suit had been brought by the commissioners, instead of in the name of the state, it would seem strange indeed, that against and in the face of their own recorded judgment of allowance, they could recover back parts of the bills they had allowed.

If this action on such pleadings shall prevail, then in every instance, where there has been, by mistake of law or fact, however innocently or honestly made, an item of five dollars or less, allowed in the accounts for compensation of an auditor or other officers, during his term, suits upon their official bonds will be upheld to recover it back.

We cannot believe such is the law.

In our judgment, the answer states a good defense to the petition, and the demurrer thereto should have been overruled.

The judgment is reversed, the demurrer overruled and cause remanded for further proceedings.

Snook & Wilcox, Attorneys for Plaintiffs in Error.
Corbet, Attorney for Defendant in Error.

RAILROADS-NEGLIGENCE.
(Lucas Circuit Court, June 11, 1897.]

King, Haynes and Parker, JJ. THE WABASH RAILROAD Co. v. TERRY E. HEETER. 1. IT IS NOT NEGLIGENCE IN A BRAKEMAN TO STEP UPON THE PILOT OF A MOVING ENGINE. It is not negligence for a brakeman engaged in the regular discharge of his duty, to step upon the pilot of a moving

engine from the outside of the track, it being necessary for such brakeman, in the proper discharge of his duties to get on the pilot of the engine, as that was the proper method of doing, and was the method universally employed, in order to facilitate business in coup

ling cars by means of the draw bar of the engine. 2. KNOWLEDGE ON THE PART OF THE BRAKEMAN THAT THE ENGINE WAS BEING OPERATED BY THE ENGINEER ALONE, EFFECT. The knowledge on the part of the brakeman of the fact that the railroad com.

pany permitted its engine to be operated by the engineer alone, while the fireman was at dinner, was not such negligence on the part of the brakeman so as to preclude a recovery for an injury received while the engine was

being thus operated. 8. PROXIMATE CAUSE OF INJURY.

Where a railroad company permits its engine to be operated by the engineer

alone, while the fireman is at dinner, and it so happens that during this time a brakeman who was engaged in the regular discharge of his duty receives an injury while attempting to step, upon the pilot of the engine while in motion, but in some way slipped aud fell and was caught under the pilot and pushed along several feet, until the attention of the engineer, then temporarily on the left side of the engine, was attracted to the other side, whereupon he immediately stopped the engine, but after the injury to the brakeman had already been done: Held, that the proximate cause of the Injury was the negligence of the company in not furnishing two men to run the engine, and in sending it out with only one man, and therefore the proximate cause of such injury was not the negligence of the engineer in leaving his side of the engine and going to the opposite side.

Lucas Circuit Court.

KING, J.

This is a proceeding in error. The action was begun in the conmon pleas court by the defendant in error, Terry E. Heeter, to recover damages of the Wabash Railroad Company for the consequences of an injury which he alleged he received while in their employ, about the 8th of September, 1893, which injury resulted to him in severe pain and suffering, the bad bruising of his leg, requiring it to be amputated, and afterwards requiring him to submit to a second operation and course of treatment in the hospital covering a period of more than a year before there was a healing of the amputated limb. He claims damages to a considerable amount-named in the petition-and on the trial in the court of common pleas he recovered a verdict upon which a judgment was rendered for $8.900. The Wabash Railroad Company seek to have that judgment set aside, and for a number of reasons.

These are, however, mainly confined to alleged errors in the charge of the court, excepted to at the time of its delivery, and to the refusal of the court to give requests made by its counsel at the trial, and upon the ground that the judgment was contrary to law and against the weight of the evidence. That is the real controversy submitted to us and it rescives it. self perhaps into three questions arising in this case and which i will notice later.

The petition alleged as a ground of negligence that it was the duty of the desendant company to provide a sale and proper engine, and also the duty of the company to have two persons upon its engine, while in motion, for the purpose of properly operating the same, one of them to act as fireman and the other as engineer. That at the time he was injured the defendant did not have a fireman and engineer upon its said engine, “but on the contrary carelessly and wrongfully allowed and permitted the fireman, without the knowledge of plaintiff, to leave the cab of said engine to go to his dinner, and negligently, carelessly and wrongfully allowed and permitted the engineer to remain alone upon the said engine to perform all the duties in the operation thereof. And so it was that when the plaintiff fell from the pilot of said engine, the engineer not being in his place upon the said engine, ready and able to perform the duties incumbent upon him, under such circumstances, but being otherwise occupied in the cab thereof, was not looking ahead upon the track or keeping a look thereon, as it was his duty to do, su as to see the dangerous position of the plaintiff or to hear his loud cries for "help.” By reason of which the plaintiff was dragged for a great distance along said track in front of the locomotive and received these injuries to his leg of which I have spoken.

There was another ground of negligence mentioned in the petition, and that was that this engine was not properly equipped or constructed in that it had no step upon the pilot thereof, as was customary and usual and necessary; but, upon the trial of the case the plaintiff disclaimed that as a ground of negligence. Some complaint was made here in argument by counsel for the plaintiff in error because this was allowed to be done; but that certainly by no amount of reasoning could be resolved into anything prejudicial to the plaintiff in error.

The ground of negligence then upon which the plaintif sought to recover was, that the defendant had insufficiently equipped this engine with hands to work the engine and had sent it to work shorthanded, in consequence of which he had been injured. The particular facts of his injury were substantially these: This was a regular freight train

Railroad Company v. Heeter.

starting from Ft. Wayne and coming in an easterly direction down to Defiance, Ohio. It left Ft. Wayne at 6 A. M. and reached Defiance-its schedule time being 9:45, but it was usually behind time and arrived there on the day in question about 11 o clock It did some work around the depot; and then the fireman ieit the engine and went to a lunch counter, or restaurant, to get some dinner. He was accustomed to do that at that point, provided the train arrived there in the neighborhood of noon, and it happened on the day in question that he did go to his dinner, and that the conductor-having been informed that there was a car west of the depot about a half a mile which was necessary to secure, directed the engineer to go and get it. The list of cars was furnished by the agent of the company at that point to the head brakeman, a man by the name of Day, and he thereupon told the plaintiff-who was a brakeman-to accompany the engineer to the point mentioned and get this car. Day and another person also, got upon the engine. It was customary and usual, when going a short distance in the yard, at Defiance and at other points, for the purpose of pulling out cars from a string, for the brakemen who were to make the coupling to climb upon the pilot of the engine and ride back. They did this upon this occasion, at least two of them did. They rode back to a point in Defiance which is the crossing of the Baltimore & Ohio Railroad and The Wabash, located about a half mile west of the Wabash city depot. Before they had reached the crossing, Day and the other man who was on the engine got off the engine, about four to six hundred seet east of the crossing, 2nd Day went and looked up the car that was to be pulled out of the string of cars standing on the side track, and the other man went to hunt up a pin for the purpose of making the same coupling, and the engine with the engineer on only, and the plaintiff on the pilot, went Lack to the crossing. The engine stood upon the crossing, with its pilot projecting a little bit east of the crossing, of the crossing of the tracks --not more, I take it, than two or three feet--and the plaintiff got off from the pilot on the right hand side of the engire, which was headed east, and on the right hand side of the track. He then crossed the track in front of the pilot to the switch-stand, which stuod on the north side o, the Wabash track, and tarew the switch, so that the engine might go over rom the main track to the side track on which the train of cars was located. He then threw the switch, and he testifies that he then stepped hack to the right hand side of the track—or to the scuth side of the track-and then gave signal to the engineer who was in his place on the right hand side of the engine looking easterly-to come ahead, gave the usual and ordinary signal. If the plats and evidence are to be relied on in the case, he stood then within twenty feet of the pilot of the engine—not exceeding that distance-easterly of it. The engine moved up trom a standstill, to the point where he stood, about twenty feet from it, and he then attempted to board the pilot of the engine by stepping upon the lower rail of the pilot-beam which runs around the pilot, and taking holdwith his left hand, probably—of the short staff that is fastened into the pilot-beam, and to thus assist himself upon the beam foi the purpose of riding back to where the cars were which it would be necessary for him to couplc. It is claimed by him that it was necessary for him to be upon the pilot in order to make the coupling involved, tor the coupling was made with a coupling-bar-shown in evidence-which weighed about 120 pounds, and was quite a heavy load ror a man to lift and hold and steer in order to make the coupling with one hand and it was said

Lucas Circu.t Court.

that it could not be done by a man standing upon the ground, but that it was necessary for him to stand upon the lower sill of the pilot in order to hold this coupling-bar and enter it into the draw-bar of the car. And it was said that it was proper for him to do it in that manner, because is was a customary thing—that it was always done in that way, not only in that yard but in other yards. It is claimed on the part of defendant as to that, that there was a rule upon the subject; and that the rule goes to the extent of prohibiting persons from getting upon the pilot from a position between the tracks—that is as far as the rule goes—and the evidence upon that subject was to the effect that it was the invariable custom to let them get upon the pilot from the outside of the track--with the knowledge of the engineer and of the railway company. On the day in question, this plaintiff attempted to step upon the engine, which he testifies was running a mile an hour. There is some other evidence which gives it at two miles an hour; but we think it is clear that it could not have been at a greater speed than that, since it only went twenty feet. It seems he stepped upon the sill of the pilot and undertook to take hold of the flagstaff, and in some manner his right foot slipped and the foot and leg went under the pilot suddenly, and the engine moved along pushing him upon the track as I have stated. He made an outcry and others at work near the crossing of the Baltimore & Ohio Railroad Company called out very loudly, several of them. The testimony is practically undisputed in the case-except so far as the engineer may have disputed it—that after Heeter had given the signal to go ahead, the engineer stepped from the right side of the engine to the left side-into the fireman's place to look ahead, and was looking ahead when Heeter fell and was caught under the pilot and was pushed along for about 65 feet, until finally the engineer's a.tention was attracted to the side where Heeter was, and there he saw what was being done, when he instantly reversed the engine and it is said that as soon as he took hold of the lever of the engine, it stopped, that is, within four feet from the time he commenced to stop it, but the injury to the plaintiff had already been accomplished. Now that is the way in which this injury happened.

It is claimed that the verdict rendered was contrary to the evidence and contrary to the law, and that is urged to us hereupon three grounds: Firstthat the plaintiff below was negligent in getting upon the pilot of a moving engine. Second—that if he knew that the engine was at that time being operated without a fireman, he was negligent in continuing to work around it, or continuing, perhaps, in the employ of the company. Third—that the proximate cause of the injury was the negligence of the engineer in leaving the proper side of the engine and going to the other side, and not in the failure of the company to supply a firemanin other words, that the proximate cause was the negligence of a fellow servant- for such it is conceded the engineer was—and not that of the master

Now I shall only briefly notice these three rounds of negligence.

As to the first. it is claimed that he was negligent in getting upon the pilot or a moving engine. I have already stated what the fact was as to the custom and usage and also as to the necessity for his being upon the pilot. I should say, in that connection that the parties upon the trial submitted certain questions to the ury, to be answered and one that was submitted by the railroad company was this: "Was it necessary for the plaintiff, in the prope, discharge of his duties, to get

Railroad Company v. Heeter.

on the pilot of the engine at the time and place he did get on? And that was answered “Yes. It is probably not quite true that it was necessary for the plaintiff below to get upon this pilot of this moving engine at that particular spot; it is true that he could have accomplished his work without doing that; it is true that he could have climbed upon some other part of the engine—could have climbed into the cab, and rode back to where these cars were, in company with the engineer; it is also true that he could have walked the distance for it was not a great distance-probably not over five or six hundred feet at the outside He could have walked or have ridden upon some other part of the engine-so that it is hardly true, as stated by the jury in answer to this question which was framed by the attorney for the railroad company and submitted to them—that it was “necessary” for the plaintiff below to climb upon the pilot of the engine at this particular time and place. But we think it is true, from the evidence in the case, that the jury might have found, had they been asked to so find here, that it was not negligence for the plaintiff below to climb upon the pilot at the time and place he did so climb upon it. It is conceded all the way through this record-substantially conceded, that it would be necessary for him to be upon the pilot at the time of coupling the engine to the car. It is also true that the company expected him to be there at the car when the engine arrived. It is also true that he could not make the coupling with the engine standing perfectly still, since there must be a movement of the engine forward in order to enter the coupling-bar into the draw-bar of the standing car with which he was going to make the coupling Now, that being true, it matters not as to whether he got on to the pilot at this particular spot or whether he waited until the engine approached nearer to the car and then climbed upon it. The fact of this engine's moving, seems to us to be a very immaterial matter. This man was an experienced brakeman; he had been working for this company ten mouths; he had been doing this same work every day that he had been in their employ. It had been done under the eye of his superior officers and was conceded all around to be a proper method of doing that work and was the method em. ployed by every one without exception; and in order to facilitate business, it was expected that a man in the employ of the company should take a little risk—that which seemed to be safe to him from observation and from this experience, and the speed at which this engine was then moving was so slow that no great danger could have been anticipated in stepping upon this pilot at that time. So then we think that the claim made by the plaintiff in error, that this was against the evidence upon that point is not substantiated.

A great many authorities have been cited to show that this was contributory negligence. We think the rule applicable is as stated in the case of Wright v. Southern Pacific Co., found in 46 Pac. Rep., 377.

"Whether, under the circumstances disclosed by the evidence, the plaintiff, at the precise time of the accident, was exercising such care as a reasonable and prudent man, having due regard for his own safety, would have exercised under similar circumstances, or whether he was guilty of contributory negligence in disobeying the rule referred to, and attempting to uncouple the cars while in motion, were questions of fact for the jury to determine. The plaintiff's disobedience of the rule, under the state of facts shown by the record, did not, as matter of law, preclude his recovery. Stepping between cars while in motion to un.

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