Baltimore & O. S.W. R. Co. v. Cox
| Decision Date | 13 May 1902 |
| Citation | 66 Ohio St. 276,64 N.E. 119 |
| Court | Ohio Supreme Court |
| Parties | BALTIMORE & O. S.W. RY. CO. v. COX. |
Error to circuit court, Ross county.
Action by Mrs. Cox, administratrix, against the Baltimore & Ohio Southwestern Railway Company. Judgment for defendant was reversed in the circuit court, and the defendant brings error. Judgment of the circuit court reversed, and that of the common pleas affirmed.
Mrs Cox, as administratrix, brought suit in the court of common pleas to recover from the railway company damages for the death of her intestate, which was alleged to have been caused by the negligence of the company. In her petition she alleged that on January 4, 1896, her intestate was employed by the company as a locomotive fireman, and was riding by its order on one of its freight trains from Mineral City, where he had been employed prior to that time, to Chillicothe; that the train, having reached Schooley's station, stopped on the siding to permit the passage in the opposite direction of a passenger train, when he left the caboose in which he had been riding, and went forward to the engine to talk to the engineer about the employment of the decedent, and, at the request of the engineer, climbed upon the engine; that while he was so upon the engine, engaged in conversation with the engineer, the said passenger train, approaching at a high rate of speed, was, by the negligence of the company, run upon said siding, colliding with said engine, and causing the instant death of said John H. Cox. The petition also set out the names of the next of kin of said Cox for whose benefit the recovery was sought. In its answer the company admitted that the deceased was killed while upon its locomotive which was standing upon a side track at Schooley's, by a collision with a passenger train which was run upon the siding in consequence of the fact that one of its employés, a brakeman who was acting as a switchman had failed to disconnect the side track on which said freight train stood from the main track on which said passenger train was approaching, of which neglect the company had no knowledge. It denied all other allegations of the petition and alleged that decedent was upon said freight train and the locomotive connected therewith without the knowledge or permission of the company, and was not there upon any business of or connected with it, and was wholly without right to be there. Upon the trial the plaintiff, while introducing a mass of evidence having no relation to any issue in the case, also introduced evidence tending to establish the following facts: The accident was due to the negligence of a brakeman who opened the switch to permit an engine to pass from the siding onto the main track, and did not close it. The decedent had been occasionally employed by the company as a fireman for several years, but had not been in its service after the 27th day of the month preceding the accident. In the meantime he had been visiting friends at Mineral City, and on the day of the accident he boarded the freight train, whose conductor was his friend, his purpose being to ride to Chillicothe to look for further employment with the company; and that was the purpose of his interview with the engineer. He had no pass, did not pay fare, and did not intend to. The rules of the company were introduced showing that freight trains, unless running as accommodation trains, were not permitted to carry passengers except upon special order. This train was not running as an accommodation train, and there was no special order. Another rule forbade engineers to permit any but employés to ride on their locomotives. The train on which the decedent was riding was composed wholly of freight cars, with a caboose attached. At the conclusion of the plaintiff's evidence the trial judge directed a verdict for the company. In the circuit court a judgment which had been rendered in the common pleas upon the verdict so directed was...
To continue reading
Request your trial