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Lucas Circuit Court.

couple them is not, as a matter of law, negligence, but the question is one for the jury.

Many authorities are cited.

"Nor do we think the court erred in admitting evidence to show that it was the custom of the switchmen, in the yard at Carlin, to couple and uncouple cars while in motion."

And they discuss that to quite an extent, and cite the case of Hunn v. Railway Co., 78 Mich., 513, where the court said:

"We think it was competent to show what was usually and habitually done in the running of trains, because, if the company permitted or had so framed the rules as to require the employee to exercise some discretion in the matter of strict obedience, it ought not to be permitted to hold its employees to the very letter of the rule, in order to shield the company from liability for what it had tacitly permitted."

And that was where there was a plain and distinct rule of the company that the cars should not be coupled or uncoupled while they are in motion. But here there was no violation of any rule; the rule only provided that persons should not step upon the pilot of a moving engine from the track of the company, impliedly sanctioning the stepping upon the pilot of a moving engine from the outside of the track, and that is exactly what the plaintiff below did.

Second-It is said that if the plaintiff knew that this engine was operated without a fireman, it was his duty then to not work with it any longer. That would seem to be a very impracticable rule of law to be laid down in the form it is claimed. It is true that when one becomes aware of delects which he, in the exercise of ordinary care, might reasonably know would bring accident or injury to him, or which he krew were dangerous, it is his duiy then to inform his employer of these facts, and then he is only authorized to continue longer in the particular employment or service upon the promise of his employer, within a reasonable time, to remedy or repair these defects. But then, in that case, it has been said that the question, whether he knew or ought to

have known that the defect in question, although he knew that it was a dangerous one, was one which would probably injure him, is a question for the jury, and a court has said that in a well-considered case in 115 Mo. Rep., 205. That was a case where the plaintiff stepped upon a foot-board running across the front of a switch engine, which was slanting and from which his foot slipped off. He knew of that fact, and the court say:

"Knowledge by the switchman of the slanting and dangerous condition of the foot-board by reason of which he was killed will preclude a recovery for his death, unless the foot-board was not so dangerous as to threaten immediate injury or the deceased might have reasonably supposed that he could with care and caution have safely used it.

"Whether the foot-board was unsafe because of its slanting condition, was, under the evidence, a question for the jury."

And in the case of Wright v. Southern Pacific, 46 Pac. Rep., at page 375—which was an injury received from the operation of an engine without a fireman, and in that respect about like this—the court says:

"We do not think that the plaintiff's knowledge of the fact that the defendant operated its engine without a fireman was of itself sufficient to preclude a recovery. Such a result would not follow unless the want of a fireman caused the operation of the engine in the yard in question to be so obviously dangerous that a man of ordinary care and reasonable

Railroad Company v. Heeter.

prudence would refuse to act as switchman. The evidence fails to show that there was any such obvious danger, and it may rightly be assumed that the agents of the defendant who had charge of its operations in that yard, deemed it safe for the engineer to perform the work of fireman in addition to his duties as engineer; and, under the circumstances of this case, the plaintiff had the right to rely, at least to some degree upon the judgment of those agents. Under the evidence shown by the record, we would not be warranted to hold that the plaintiff was bound to rely entirely upon his own judgment and in opposition to that of the officers of defendant, determine that it was absolutely unsafe to operate the engine without a fireman and abandon his employment as switch

man."

Now that is like this case. But, in the case at bar the plaintiff denies that he knew there was no fireman in the cab of this locomotive; but, admitting that he did know; he also knew that the company had been almost always-or at least on some occasions, permitting the engine to be operated by the engineer alone in the absence of the fireman for a long course of time and without injury to any body, and can it be said as a matter of law that the plaintiff was bound to know that that was negligence, from which he might receive an injury? The company, represented by its agents and its workmen, had seen fit to send this engine out alone with the engineer. Was their judgment to be disregarded and the judgment of a brakeman substituted for the judgment of the company? We think not. And it may be said that even if he knew there was no fireman, still that of itself alone would not make him negligent -especially as no injury had ever occurred in consequence of the absence of a fireman.

Third-It is said, and argued somewhat strenuously that the proximate cause was the negligence of the engineer, and was not the failure of the company to supply a fireman. In this connection I should say that the defendant below submitted these interrogatories to the jury, and which were answered:

1. Was the engineer, Casper Smith, a fellow servant of the plaintiff at the time the plaintiff was injured? Answer. Yes.

And in the arguments and in the charge of the court to the jury he was treated as a fellow servant.

2. Was the negligence of the engineer the proximate cause of the plaintiff's injury? Answer. No.

3. Was it necessary for the plaintiff in the proper discharge of his duties to get on the pilot of the engine at the time and place he did get on? Answer. Yes.

Also the plaintiff submitted some interrogatories, which were these:

Was the railroad company negligent in not having two men on the engine when plaintiff was hurt? Answer. Yes.

Was the absence of the fireman the proximate cause of the injury? Answer. Yes.

So the jury had found that the absence of the fireman was the proximate cause, and that the company was negligent in not having him upon the engine, and also that the negligence of the engineer—the way the question is framed-was not the proximate cause of the injury. Now the jury have not said, by this special verdict, that the engineer was negligent; they have answered the question as put to them. It is argued that this answer assumes the engineer was negligent, but

Lucas Circuit Court.

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whether it does or not, the jury have answered that the engineer, whether negiigent or not, was not the proximate cause of the injury, and that the proximate cause of the injury, was the ahsence of the fireman, or the failure of the company to furnish two

men

this engine. As we view this evidence, we think it sustains that view. It is true that a superficial vien of this subject might lead one to say that it was the fault of this engineer that this accident happened-that it was his fault in leaving his own side of the engine. But, can it be said seriously, that if this company sees fit to send out its engine in the control of one engineer-putting only one person in the cab to manipulate it, to give signals and to watch out ahead for obstructions upon the track—that it is not his duty to look as well upon the one side as upon the other, of the engine? Can it be said that he should give his attention altogether to the side upon which the lever is on and that he should not look out ahead? It is clear from the testimony that one of these men got off from the engine five or six hundred feet away from and went up there to the vicinity of this car which was to be pulled out. They were to attach the engine to the first car and that was attached to a string and at the east end of the string was the car they wanted to get. They then pulled out this string of cars and run back over the switch and pushed this car—which was an oil car -ahead upon the main track-having uncoupled it before pushing itand then came back upon the side track with the balance of the string of cars and left them. That was to be the course of doing the work, and this brakeman had gone back to the end of this string to see that this oil car was securely coupled to the balance of the train, and that the rest of the cars were all coupled, so that all the cars could be moved, and I think it cannot be said that it was not the duty of the engineer to look out on both sides of the engine. It cannot be said as a matter of law that the jury would not have been justified in finding that the engineer was in performance of his duty although he left the right hand side of the engine and was engaged in looking out to the left at the particular instant of time when the plaintiff fell and was caught. Now I do not think I need to extend observations upon that subject further. We think, from the evidence, that the plaintiff was entitled to the verdict which he recovered here. It was the duty of the engineer while he was at this point to look out ahead; it would be necessary for him to see along the track on which these cars were standing on the left hand side of the engine. There is a distinct and plainly marked curve upon the cross track which runs from the main track to the siding and if the engineer intended to look out ahead before his engine reached the straight part of the siding, it would be necessary to look out to the left hand side, and we cannot say that he was actually negligent in leaving one side and going to the other side to look.

A good deal has been said about the charge. The most of those objections can be disposed of by saying that the jury have found, in answer to the few interrogatories which were submitted to them, the questions of iact upon which they say the plaintiff is entitled to recover, so that much of that which was submitted to the court by the defendant below is taken out of the case. There were nineteen requests to charge, made by deiendant below, most of which were refused by the court, but I will not undertake to go over each one and give the reason why the court would have been justified in refusing them. Some of these I may be said, it would have been as well for the court to give, but they

Railroad Company v. Heeter.

are no longer of importance, since the jury have detrmined the particular questions of fact which they reler to.

There were exceptions to the charge of the court which I will speak of. The court charged the jury this:

"But, gentlemen, further and in this connection, you must regard this further rule of law-the rule that the negligence of an injured party which proximately contributes to the injury precludes from recovery-has no application where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.

"The plaintiff in this case, if otherwise and upon the evidence and under the rules of law, entitled to recover, is not precluded from such recovery even if he was himself negligent in attempting to get upon the pilot of the engine, it you so find—that the engineer, after he became aware or ought to have become aware of the plaintiff's danger, failed to use ordinary care to avoid injuring him and he was thereby injured.”

Now then, the court had told the jury-not perhaps exactly, but in language that bears that construction—that the engineer was the fellow servant of the plaintiff. Counsel for plaintiff below, when the court was submitting this verdict to him, said—as appears by the recordthat they would not object-or that they could find no fault with the jury finding, if they should find, that the plaintiff and the engineer were fellow servants. They did so find—that they were fellow servants. Now the court charges the jury in this connection-assuming, now, that they were fellow servants, that if they found that the engineer, after he became aware or ought to have become aware of the plaintiff's danger, failed to use ordinary care to avoid injuring him, and he was thereby injured, that the company would be responsible for that.

I don't understand how the court came to give that proposition of law. It was entirely irrelevant and covers no issue. There is not a particle of evidence in this case to indicate that the engineer was negligent after he became aware of the plaintiff's peril. The evidence shows that he acted promptly and stopped the engine within four feet of the place where he first learned of the plaintifi's dangerous situation, and there was no ground, upon which the court could sadale the burden of that upon the engineer. There don't seem to be very much reason for the court giving the proposition, if it were confined to the company, but the court, if it gave it at all, should have confined it to the defendant's action; for, the defendant, or its responsible agents, after it learned of the dangerous situation of the plaintiff, if it could have avoided injuring him and did not, the company, of course, would be responsible for that injury although the plaintiff himself were negligent. But we think the whole proposition was irrelevant in this case, and for that reason it was not error in the court to submit it-it had no bearing upon the case either way. The jury found that this man was a fellow servant, and that the sole 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 there with only one.

For these reasons, we think that the charge of the court was correct; that is that there was no error to the prejudice of the plaintiff in error and that the verdict is sustained by the evidence. Nothing was said in argument about the amount of it. It is a large sum but we cannot say from the evidence that he was not entitled to receive that sum. The

Lucas Circuit Court.

man has suffered much; there was more than a year of very severe suffering and a great deal of trouble afterwards. He was earning $70 per month at the time he was injured and he was 28 years old. He has lost his limb, and we will not say that the amount given by the jury was too large. This judgment will have to be affirmed.

Alexander Smith, Attorney for Plaintiff in Error.
Brumback Thatcher, for Defendant in Error.

PERSONAL INJURIES--NEGLIGENCE.

(Lucas Circuit Court, February 23, 1897.]

King, Haynes and Parker, JJ.
THEHOCKING COAL & Ore TRANSFER Co. v. JOHN Vocht.
NEGLIGENCE OF PARTY INJURED DEFEATS HIS RIGHT OF RECOVERY.

Where an employee, without any business or need in the prosecution of his

work, but solely from his own notion or curiosity, walks upon tracks of a traveling elevator or derrick, and there meets with an accident, such action on his part constitutes sheer carelessness for which he cannot recover there being no negligence on the part of those in charge of such elevator or

derrick. KING, J.

We have read all of the record in this case that pertains to the negligence, either of the defendant below or the contributory negligence of the plaintiff below, and we have come to the conclusion that the verdict and judgment in this case is not supported by the evidence and the law. The undisputed evidence of the plaintiff and of the witnesses called by him, who saw this accident, disclosed the fact to be that the plaintiff, without having any business or need in the prosecution of his work, but solely from his own notion or curiosity, walked upon that place with his foot upon a railway track, where a machine known as an elevator or derrick was then near, where the machine was then standing, where it was accustomed to work and travel. We think that on his part was negligence. If he placed his foot there, and allowed it to remain until this machine run over him, he can't recover for that kind of an accident. He swears that he did not see this machine traveling up and down that track; but the undisputed evidence in the case is that it had been at work there all the day he was injured. He was injured at about 4:00 o'clock. That had made trips up and down the track, only 200 feet in length, all of which was in range of his vision. He had finished his work in unloading a car, and got down from it to go and together with his co-workmen, get another car and push it up in the same place. On their way they were going to stop at a pump and get a drink of water. The pump and the car that he was going to get were not across nor in the direction of the track upon which the derrick was running. He had no occasion to go upon that track either, to go to the pump or the car. None of his fellow workmen did go upon this track, nor did any of them, in their testimony, know how he got there. That he did get his foot over the rail, is a fact in the case. How he could have done that, except frori sheer carelessness, we cannot understand.

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