Statement of the Case. at the time plaintiff received his injuries he was guilty of negligence which contributed directly and proximately to cause his injury, in this, to-wit, that as head switchman the plaintiff at the time had full charge and control of the push-pole, well knowing that the defendant had provided a safe place and facilities for carrying this push-pole at the side of the tender to said engine, where the rules of the defendant, with which the plaintiff was familiar, required this push-pole to be carried when not in use; that plaintiff voluntarily, and without any reason or necessity therefor, placed this push-pole across the front of the engine, where same was apt to and did jostle to one side and strike the car standing upon the sidetrack, and that, without the knowledge and direction of the defendant, plaintiff voluntarily and without reason or necessity therefor rode upon the front of the engine, in front of the push-pole, when the engine was moving, and was thereby struck and injured. And the defendant further averred that the plaintiff in placing the push-pole across the front of the engine, and in riding in front thereof upon the engine, assumed the risk of being injured thereby, and that the plaintiff's injuries resulted from the hazards and dangers incident to his duties, which he assumed as part of his contract of employment. The plaintiff in reply denied each and every allegation in the answer, except such as admit or deny the allegations set forth in plaintiff's petition in his first and in his second cause of action, respectively; and to this reply plaintiff annexed certain interrogatories, numbered one to five, which he asked Statement of the Case. that defendant be required to answer. rogatories and answers are as follows: INTERROGATORY ONE. The inter What, if any, record, is in the possession or under the control of the defendant, made and kept in the regular and ordinary course of defendant's business, for the purpose of showing, among other things, and purporting to show, among other things, the description, origin and destination of shipments, which plaintiff and the said switching crew were engaged in handling at the time plaintiff was injured? ANSWER. I have in my possession and subject under my control, a record showing, among other things, the description, origin and destination of shipments which the plaintiff and the said switching crew were engaged in handling at the time plaintiff was injured. INTERROGATORY TWO. Of what do such records consist? ANSWER. Such records consist of On Hand Yard Reports, Shipping Orders and copies of Way Bills. INTERROGATORY THREE. In whose possession, or under whose control or custody are such records? Statement of the Case. ANSWER. Such records are in my possession and subject to my control, other than the On Hand Yard Reports, and such reports are in the custody and control of General Yard Master, E. Holst. INTERROGATORY FOUR. Are you able, by referring to such records, to designate and describe what, if any, of the shipments referred to in interrogatory one, originated at or were destined for some point or points outside the State of Ohio? Yes. ANSWER. INTERROGATORY FIVE. If you have answered the last question in the affirmative, please designate and describe such interstate shipments, if any. ANSWER. Two of said cars were to be loaded and destined to Lawton, Michigan; one of said cars was destined for Monroe, Michigan, and two to Pittsburg, Pennsylvania. At the close of plaintiff's evidence, the defendant moved the court to direct the jury to return a verdict in favor of the defendant, which motion was sustained, to which plaintiff duly excepted. Motion for new trial was filed and overruled, and error prosecuted in the court of appeals of Lucas county. That court affirmed the judgment Opinion Per Curiam. of the trial court, and this proceeding in error is prosecuted in this court to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming the same. Mr. Ben W. Johnson and Mr. James Nye, for plaintiff in error. Messrs. Potter & Carroll, for defendant in error. BY THE COURT. No evidence was introduced by the plaintiff tending to prove the defendant guilty of any of the acts of negligence charged in the petition. On the contrary, the evidence offered on behalf of the plaintiff, including his own testimony, shows conclusively that this box car was in such a position upon the siding that the engine would have passed it in safety had the push-pole not projected far enough from the side of the engine to engage the stirrup on the car; that after the push-pole came in contact with the car it pulled it some distance in the direction in which the engine was going, before the opposite end of the pole became loosened from the engine and flew forward and struck the plaintiff; that the fireman was experienced and competent to operate this engine; that he was moving it in a careful and prudent manner, at a speed not to exceed four or five miles an hour; that at all times he had the engine under perfect control; that immediately upon the alarm being given he stopped the engine within a distance of four or five feet; that he did not know the push-pole was across the pilot of the engine, and could not see it from his position on the right-hand Opinion Per Curiam. side of the cab; that by reason of his view being obstructed by the front part of the engine he did not have equal opportunity with the plaintiff to observe the location of the box car as the engine neared it; that the engineer was on the fireman's side of the cab; that he did not know of the location of the push-pole, but perhaps might have seen it had he looked downward in its direction; that his duty required him to keep a vigilant watch ahead, and not downward in the direction of the push-pole; that at the time of the accident, he was in the strict performance of his duty; that he saw the box car in such position upon the side track that the engine would pass it in safety; that he did not see the push-pole until the accident happened; that the plaintiff was the only person on the forward part of the engine that had any knowledge of the location of this push-pole; that he had himself placed it athwart the pilot of the engine, instead of on the hooks that had been placed at the side of the tender for the purpose of carrying this pole with safety to all the employes connected with the operation of this engine; and that the plaintiff had placed this push-pole in this position for his own convenience, and had voluntarily taken a seat upon the pilot of the engine, directly ahead of it. In regard to this last particular, plaintiff testified that he had so placed himself upon this part of the engine to look out for anything that was wrong, "switches wrong or any obstruction on the track or, if the cars wasn't clear we were to keep our eyes open." |