Alexander v. Pennsylvania Co.

• Decision Date: 08 December 1891
• Citation: 30 N.E. 69,48 Ohio St. 623
• Parties: ALEXANDER v. PENNSYLVANIA CO.
• Court: Ohio Supreme Court

30 N.E. 69

48 Ohio St. 623

ALEXANDER v. PENNSYLVANIA CO.

Supreme Court of Ohio.

December 8, 1891

Error to circuit court, Mahoning county.

This action was brought in the court of common pleas of Mahoning county by Alexander, the plaintiff in error, to recover against the defendant in error, the Pennsylvania Company demages for injuries sustained by him while in its employment. He recovered a judgment in that court, which was reversed by the circuit court of Mahoning county in proceedings instituted for that purpose by the defendant in error, whereupon this proceeding was brought to obtain a reversal of the judgment of the circuit court, and to affirm that of the court of common pleas. Affirmed.

Syllabus by the Court

1. Where, on the trial of an issue respecting the law of another state, the decisions of the courts of that state are given in evidence to the jury, it is the province of the jury to determine whether or not such decisions have been made, but it is the duty of the court to construe and deduce from them the rules of law which they establish.

2. Where, in an action prosecuted in this state by a servant against his master to recover for personal injury resulting to him from the negligence of another servant of the same master, it appears that the accident causing the injury occurred in the state of Pennsylvania, that the contract of employment was made in that state, and that all the stipulated services were to be performed therein, no recovery can be had if by the laws of Pennsylvania no right of action arose from the transaction, though the laws of Ohio would give full relief had the transaction occurred within this state.

Jones, Anderson & Terrell , for plaintiff in error.

Thomas W. Sanderson and J. R. Carey , for defendant in error.

BRADPURY, J.

The record discloses that the plaintiff in error, a boy of about 16 years of age, was in the service of the defendant as one of a gang of men engaged in relaying the track of a branch of defendant's railroad. That his work mainly consisted in carrying water for the other members of the gang occasionally, however, he assisted in the work they were doing. That on the day he was injured a train of cars, loaded with cinders for ballasting the track, was waiting to be unloaded; and that, as he was climbing on one of the cars, or perhaps had gotten on it, to help unload the cinders, the train was started forward, by reason of which he was thrown from the car, under its wheels receiving, besides other lesser injuries, one necessitating the amputation of a leg between the ankle and knee. The foreman of the gang discharged and employed men, had immediate control of them while at work, and of the work being done. Undoubtedly, according to the law of this state, he was such a representative of the company as would render it liable to one of the gang of men under his control, who should be injured by his negligence. At this point there is a conflict in the testimony respecting the conduct of the plaintiff in error and the foreman, and the immediate circumstances under which the plaintiff went upon the car and the train put in motion; but there is evidence from which the jury could find that the foreman ordered the plaintiff to assist in unloading the cinders; that, in obedience to this order, he attempted to climb upon a car; that he did so in a reasonably careful manner; and that the foreman carelesly, even recklessly, ordered the train to be moved forward before the plaintiff had secured himself a safe footing upon the car he was attempting to board, thereby throwing him from it, and under its wheels, causing the injury of which he complains; thus giving to the plaintiff, according to the law of Ohio, a right of action against the railroad company.

The real questions in contention between the parties in this court arise out of the fact that the accident occurred in the state of Pennsylvania. The defendant in error (also defendant in the court of common pleas) interposed in the last-named court, among other defenses, the following: ‘ For a second defense it says that said plaintiff entered into its employ within the state of Pennsylvania, and was employed to serve the defendant within the said state of Pennsylvania, and with reference to the laws of said state of Pennsylvania. It says, further, that under the laws of said state of Pennsylvania, within which said contract was made, and where said plaintiff was acting as an employe of the defendant, the plaintiff and all the other employes, including said gang boss named in plaintiff's petition, engaged upon and about the train in the unloading of the same, are held to be fellow-employes, and for the negligence of either resulting in injury to the other the common master, to-wit, the defendant, is held not to be liable to the other. Wherefore this defendant asks to be dismissed, with its costs.’ The sufficiency of this defense is denied by counsel for plaintiff in error in a forcible and ingenious argument, in which they specially criticise the averment, ‘ are held to be fellow-employes,’ etc. It is true, there is no direct averment that any of the courts of Pennsylvania so held, but the liberal rules applicable to the construction of pleadings in this state require us to infer that the pleader so intended. No objection, by motion or otherwise, was made to the form of this defense in the court of common pleas, or, so far as the record discloses, at any stage in the progress of the case, until made by counsel in their brief filed in this court. Under this defense a number of the decisions of the supreme court of Pennsylvania were introduced in evidence to establish the rule of law attempted to be set up by this answer. Whether upon motion, made at the proper time, the defense should have been made more certain and definite, we need not inquire; for at this late stage in the proceedings, after a strongly contested trial, mainly had upon the issues made by the very defense, and the reply denying its truth, the defense should receive the most favorable construction its language will permit; and when the pleader has averred, as in this defense, that ‘ under the laws of the state of Pennsylvania * * * the plaintiff and the ‘ gang boss' * * * are held to be fellow-servants,’ it is entirely reasonable to infer that the alleged holding was by the courts of that state, having authority to declare and announce the rules of law operative therein.

The record of the proceedings in the circuit court is ambiguous. One of the assignments of error made in that court by the defendant in error here was that the court of common pleas erred in overruling its motion for a new trial, and one of the grounds for a new trial stated is that the motion was that the verdict was contrary to the weight of the evidence; so that the circuit court had before it for decision that question; and, had it reversed the judgment of the court of common pleas on that ground, this court would not have reversed its action, and the same result would have followed from a general judgment of reversal,-that is, one specifying...