Cincinnati, H. & D.R. Co. v. Margrat

• Decision Date: 13 March 1894
• Citation: 51 Ohio St. 130,37 N.E. 11
• Court: Ohio Supreme Court
• Parties: CINCINNATI, H. & D. R. CO. v. MARGRAT.

37 N.E. 11

51 Ohio St. 130

CINCINNATI, H. & D. R. CO. v. MARGRAT.

Supreme Court of Ohio.

March 13, 1894

Error to circuit court, Lucas county.

The defendant in error recovered a judgment against the plaintiff in error in the court of common pleas of Lucas county on account of personal injury received by him while engaged in its service. This judgment was affirmed by the circuit court whereupon the plaintiff in error instituted the present proceedings in this court to obtain a reversal of both judgments. Affirmed.

Act April 2, 1890, 87 Ohio Laws, p. 150, § 3, defining the relation of railroad employés, provides that " every person in the employ of such company having charge or control of employés in any separate branch or department, shall be held to be the superior and not fellow servant of employés in any other branch or department who have no power to direct or control in the branch or department in which they are employed." Held, that the engineer of one train is not a fellow servant of a brakeman on another train of the same company.

Syllabus by the Court

1. An engineer in charge of a locomotive on one train of cars of a railroad company is in a branch or department of its service separate from that of a brakeman on another train of the same company, within the meaning of the terms ‘ separate branch or department,’ as those terms are employed in section 3 of the act of April 2, 1890 (87 Ohio Laws, 150).

2. An engineer in charge of a locomotive, who has authority to direct or control a fireman serving on the same locomotive is a ‘ superior,’ within the meaning of the above-named section.

3. Whether an engineer or other employe of a railroad company has authority to direct or control other employes of the same company is a question of fact to be determined in each case. This may be done, however, either by proof of express authority, or by showing the exercise of such authority to be customary, or according to the usual course of conducting the business of the particular company interested or of railroad companies generally.

Swayne, Swayne & Hayes, for plaintiff in error.

Harvey Scribner and Frank H. Hurd, for defendant in error.

BRADBURY, J.

Upon the trial of the case in the court of common pleas, the defendant in error having introduced his evidence and rested the plaintiff in error moved that court to direct the jury to return a verdict in its favor, which motion being overruled, it entered an exception. It is upon this exception that the questions arise which we deem material to a decision of the case. That Margrat, while in the service of the plaintiff in error, received the injuries of which he complained, was not disputed; but plaintiff in error contends that the evidence introduced by Margrat disclosed (1) that those injuries resulted from his own negligence; (2) that his evidence did not show negligence on its part; and (3) that, if negligence of its servants was shown, the negligence was that of one who was a fellow servant of Margrat, for which it was not liable. Margrat was in the service of the plaintiff in error as brakeman, a part of his duties being to help switch cars in its yards at Deshler, in this state, and while there engaged in switching received the injuries of which he complained, from a locomotive which, manned by an engineer and fireman, came up from behind, and ran over him. Counsel for plaintiff in error contend that he should have either kept off the track altogether or maintained a lookout for locomotives and cars. The accident occurred about midday; and if it appeared simply that Margrat was on the main track of the company's roadway, and, without looking or listening, permitted a locomotive to run him down, the presumption that he was negligent would perhaps be irresistible. Other facts, however, appeared. The evidence tended to show that two cars standing in the yard were to be coupled to the train of which Margrat formed a part of the crew; that he was directed to assist in making the coupling, and, being then near the front of the train, had to pass to its rear to perform this duty; that his train stood on a side track, which for probably 400 to 600 feet from its connection with the main track ran northward close to and parallel with the main track; that the space between the two tracks was icy, causing its use to be difficult and somewhat dangerous as a way for passing to the rear of the train at the speed Margrat's duties required him to move; that his train began to move backward towards the cars to be coupled just as he started towards them; that it was quite difficult, if not wholly impracticable, for him to pass along on the outside of the side track over which his train had begun to back. The only choice of a practicable way then open to him by which to pass to the rear of the backing train to make the coupling was to go along the main track, or along the space between the main track and the side track. If he chose the latter, it threw him close to his moving train; and, the ground being slippery and uneven, he might be in danger of falling under the cars of which it was composed. Under these circumstances we think it was the duty of the court of common pleas to submit to the jury the question whether Margrat was or was not negligent in choosing the main track, rather than the space between the two tracks, to pass to the rear of his train to make the coupling in question.

It is further contended that if it was not negligent for Margrat to go upon the track as he did, yet, having gone upon it, he was negligent in permitting the locomotive to overtake and run him down; that, being on the track, he should have looked and listened; and, if he had done so, it would have been impossible for the locomotive to take him unaware, as it did. We are not disposed to ignore or doubt the rule that, under ordinary circumstances, one who goes upon a railroad track should be held to the duty of using his senses of sight and hearing, and, if injured by reason of failing to do so, must abide the consequences; but this rule is not to be extended so as to deny in all cases relief to one who may be injured on account of such failure. Conditions may exist which will excuse it. Did they exist in the case under consideration? The evidence tends to show that Margrat, when the time arrived to do the switching in question, was sitting on the locomotive of his train. That he then looked up and down the track, and, although his view extended a great distance in both directions, he saw nothing at all on the main track, but did see the engine that afterwards run him down standing on a side track, about 1,500 feet away. That he stepped from the locomotive, with his back towards the distant engine, and proceeded, as we have before seen, along just outside the main track, towards the cars to be coupled. This led him away from, and kept his back towards, the distant engine. That, as the cars to be coupled were to be coupled to the train that Margrat was connected with, this train began to back towards them as Margrat stepped from the locomotive on which he had been sitting. It was his duty to pass along this train to its rear, as we have seen, so as to be ready to make the...