Columbus, H. V. & T. Ry. Co. v. Erick

• Decision Date: 13 March 1894
• Citation: 51 Ohio St. 146,37 N.E. 128
• Court: Ohio Supreme Court
• Parties: COLUMBUS, H. V. & T. RY. CO. v. ERICK.

37 N.E. 128

51 Ohio St. 146

COLUMBUS, H. V. & T. RY. CO. v. ERICK.

Supreme Court of Ohio.

March 13, 1894

Error to circuit court, Fairfield county.

On March 21, 1892, George W. Erick, plaintiff below, filed his petition against the Columbus, Hocking Valley & Toledo Railway Company, defendant below, in which he averred that the defendant below was a corporation duly organized and incorporated under the laws of the state of Ohio, and, at the time of the injury complained of, owned and operated a line of railroad extending from the city of Columbus to and through the county of Fairfield and state of Ohio; that the plaintiff had been employed by the defendant, in the capacity of brakeman, for about nine months; that on the 2d day of August, 1891, he was engaged as brakeman on a freight train which started from the city of Columbus in the evening of that day, and when near the city of Lancaster, at about 11:30 o'clock at night, his duty called him to put on the brakes on the cars; and that in so doing he took hold of the brake on a coal car, No. 24,268, and would up the slack in the chain on the brake, and while setting the brake the brake wheel suddenly slipped, and fell off the brake staff, and thereby threw plaintiff off the train, upon the side track and greatly injured him. Plaintiff avers that the defendant below was negligent in not furnishing him reasonably safe and properly constructed cars, brakes, and appliances for use in his employment as such brakeman; that it was the duty of the company to have carefully inspected the car and brake before placing it in the train, which it failed to do; that it was the duty of the company to have properly adjusted the wheel to the brake staff, and to have fastened the same by means of nuts or other appliances, so that the wheel would not slip or come off in the usual operation of setting the brake; that the wheel was not properly adjusted to the brake, and was loose, and came off while being used by plaintiff, without fault on his part, and while he was using the same with due care; that he had no knowledge of any defect in the wheel or brake staff; that from the time he left Columbus, early in the evening, he had used the same brake several times before it finally broke; and that the wheel was defectively adjusted to the brake staff, of which he had no notice or knowledge. The defendant filed its answer to this petition April 20 1892, setting up 13 several defenses, denying most of the allegations of the plaintiff, and averring that he was guilty of contributory negligence in the use of the brake, and in not inspecting the brake himself before he left Columbus, and at other times before the injury, and in not discovering the defective condition of the brake; and averring that the car was carefully inspected, together with its brake staffs and other attachments, before leaving Columbus, by defendant's inspectors, who had been selected with care and who were competent, and performed their duties carefully and without negligence. And certain rules of the company are pleaded, of which defendant avers the plaintiff had knowledge, and failed to observe. The reply of the plaintiff to the answer of defendant is a general denial. The case was submitted to a jury upon the petition, answer, reply testimony, arguments, and charge of the court, and a verdict returned in favor of the plaintiff. A motion for a new trial was filed by defendant below, and overruled, and judgment entered on the verdict. The circuit court, on a petition in error, affirmed the judgment of the court of common pleas; and thereupon the railroad company filed its petition in this court to reverse the judgment of the circuit court, and of the court of common pleas. Affirmed.

A chief inspector of cars having other inspectors under him, by virtue of Act April 2, 1890, § 3, is not a fellow servant of a brakeman.

Syllabus by the Court

1. A railroad company is chargeable with knowledge of defects in its cars, locomotives, machinery, and their attachments, as provided in the second section of the act of April 2, 1890 (87 Ohio Laws, 149); and to overcome the effect of such knowledge the company must show that, in fact, it did not have such knowledge, and that it used due diligence to ascertain and remedy such defects. The presumption of diligence raised by proof of the employment of competent and careful employes will not be sufficient to overcome the effect of the knowledge of defects, which, by this statute, it is deemed to have.

2. In the trial of a personal injury case against a railroad company for injuries caused by defects in its cars, locomotives, and machinery, or their attachments, the defects so causing injury are prima facie evidence of negligence on the part of such corporation; and by force of this statute the burden is thrown upon the company to show, by proof, that it has used due diligence, and is not guilty of negligence.

3. By virtue of the provisions of the third section of this statute, a chief inspector of cars, having other inspectors under him, is not the fellow servant of a brakeman.

C. O. Hunter and A. I. Vorys, for plaintiff in error.

Geo. E. Martin and Powell, Owen, Ricketts & Black, for defendant in error.

BURKET, J. (after stating the facts as above).

In the argument of the plaintiff in error it is urged that the court erred in certain rulings as to testimony, and that the verdict is not supported by sufficient evidence. This court will not usually review a case upon the testimony, and find no occasion now to depart from the general...