Barbour v. Baltimore & O. R. Co.

• Decision Date: 12 June 1957
• Parties: , 6 O.O.2d 30 BARBOUR, Appellee, v. BALTIMORE & OHIO R. CO., Appellant.
• Court: Ohio Court of Appeals

Page 191

105 Ohio App. 191

152 N.E.2d 134, 6 O.O.2d 30

BARBOUR, Appellee, v. BALTIMORE & OHIO R. CO., Appellant.

Court of Appeals of Ohio, Summit County.

June 12, 1957.

Syllabus by the Court

1. By virtue of 45 U.S.C.A. Section 51 et seq., Federal Employers' Liability Act, a railroad company operating in interstate commerce is liable in damages for injuries to its employees suffered while working within the scope of their employment, which are proximately caused by the negligence of the officers, agents or employees of the said railroad company. Under the Act, vicarious liability may arise when, through a failure to use ordinary care, employees are not furnished a reasonably safe place to work.

2. Where a railroad brakeman, engaged in 'spotting' his employer's freight cars on the premises of a shipper, claims to have been injured by tripping and falling on nails protruding from the floor of a boxcar in which he was working, and sues to recover damages for the injuries under the Federal Employers' Liability Act, he must, in order to recover, show by direct or circumstantial evidence that an officer, agent or employee of the railroad was responsible, through negligence, for creating the hazard, or that one of more of such persons had actual knowledge of the condition of the car before the accident, or that the dangerous condition of the car had continued for a sufficient length or time to justify the inference that the failure to know about it and to remedy the hazard was due to a want of ordinary care.

3. To the general rule that the mere proof of a present condition of a material object generally raises no inference that the same condition existed at a prior date, exceptions occur when the evidence supports a probability that no intervening circumstances which may have been the source of the subsequent condition have occurred to change the condition from the time in issue to the subsequent time.

4. Where direct evidence tends to prove that a railroad boxcar was an unsafe place for an employee to work, because of nails protruding from the floor of said car, an inference may be drawn that the car was in the same condition three days prior thereto at a time when it was inspected by the owner railroad company's inspector (therefore notice to the company), when it is shown that the car was in the continuous physical possession of the railroad, was not used in commerce during the time, and was moved only from the owner's railroad yard by the owner's train crew to a shipper's nearby rpemises for the purpose of spotting and eventual loading.

Wise, Roetzel, Maxon, Kelly & Andress, Akron, for appellant.

Scanlon & Schultz, Akron, for appellee.

DOYLE, Judge.

This action was commenced in the Court of Common Pleas of Summit County by Reginald G. Barbour, a brakeman in the employ of the Baltimore & Ohio Railroad Company, against the said Baltimore & Ohio Railroad Company.

The petition alleged, in substance, that, while he was engaged in the performance of his duties with his employer, and engaged in interstate commerce within the meaning of the Federal Employers' Liability Act, he stepped from a platform into a moving boxcar, while assisting in the 'spotting' of cars on the premises of The National Company, and was caused to trip and fall by nails protruding from the floor of the car; that a portion of the side of the car was lying flat upon the floor with nails protruding therefrom, and, as he fell onto these nails, his left arm was punctured and serious injuries resulted.

The specifications of negligence upon which trial was had were to the effect that: (1) the defendant railroad company failed to exercise reasonable care to provide plaintiff with a reasonably safe place of employment; (2) the defendant failed to warn plaintiff of the condition of the floor of said boxcar; (3) defendant maintained its equipment, and particularly the boxcar, in an unsafe manner, in that it permitted nails to protrude from the floor of the same.

The defendant corporation stipulated that it was engaged in interstate commerce; admitted the employment of the plaintiff on the day of the accident, and that he suffered a puncture wound of his left forearm, which wound was sutured, and that there was then administered to the plaintiff a tetanus antitoxin. Other allegations of the petition were denied.

Pursuant to trial, a jury returned a verdict in favor of the plaintiff and against the railroad company in the amount of $2,500, upon which judgment was later entered, following the overruling of various motions, including a motion for judgment non obstante veredicto and a motion for a new trial.

Objection was further made to the court's acceptance of the following answers to interrogatories submitted to the jury in the event of the rendering of a general verdict. The record shows the interrogatories and answers as follows:

'No. 1. Do you find that the defendant was negligent?

'Answer: Yes.

'No. 2. If your answer to question number one is in the affirmative, state of what the negligence consisted.

'Answer: The jury agrees the defendant guilty in allowing a hazardous condition to exist in excess of a reasonable safe place to work. We believe that due to the examination by the car inspector said car should have been in reasonable condition. By reasonable condition we assume that the side of the car should have been intact and not lying on the floor nor should there have been spikes protruding in the floor over which said plaintiff tripped and fell sustaining his injury.'

From the judgment stated above, appeal has been taken to this court.

Numerous errors are assigned which are asserted to be prejudicial in character and require a reversal of the final order of the trial court.

Attention will now be directed to these claims in connection with facts shown to exist.

On October 4, 1953, the boxcar involved in this case, owned by the defendant railroad company, was received by the defendant company at its Akron junction yards from the Erie Railroad, on which line it had been in use for a period of time.

By agreement between the two railroad companies, when cars are returned to the owners, an inspection is made by a joint car inspector employed by both companies. This inspection consists of a check 'to see whether the running gears * * * [are] okay and safe to operate,' and whether it should be classified for 'high-class loading or rough freight loading.'

The car was inspected by an inspector and classified for 'rough freight loading' and was then moved by the defendant to Aultman, Ohio, where it was taken to The National Company plant siding for eventual loading and shipment with rough freight.

Whether nails protruded from the floor, and whether a part of the side of the car with nails protruding therefrom was on the car's floor at the time of inspection, is not shown from the evidence. However, the superintendent of the Akron division of the defendant company testified that a car in such condition would be passed by the inspector for the handling of rought freight.

On October 6, 1953, a train crew of the defendant company, which included the plaintiff, became engaged in the 'spotting' of freight cars and of the boxcar here involved. 'Spotting * * * is referred (to) on the railroads as placing cars for either loading or unloading at designated points in a plant.' The operation of spotting, with which we are here concerned, was the placing of cars on The National Company's premises for the purpose of loading them with tile.

The 'spotting' operation consisted first of putting the cars in the train in proper order for placement for loading; a diesel locomotive then pushed the cut of cars (9 to 14 in number) in a southerly direction past a platform of considerable size; an engineer and a fireman were in the engine cab; a head brakeman walked on the platform along with the train, four to six car lengths ahead of the engine; plaintiff, the rear brakeman, walked along the platform four to five car lengths from the head end of the cut of cars; and the conductor, in charge of the spotting operation, placed himself at the head end of the train for the purpose of properly placing or spotting the cars.

The operation was conducted by means of signals given by the various members of the crew; the train was proceeding at a speed of three miles an hour.

The plaintiff testified that, as he walked beside the train, at a point where the tracks curved to the left, the conductor disappeared from view; that the cars were traveling a little faster than he was walking, and as a car came along with its door open, he 'stepped in the door to overtake the view of the conductor'; and that, as he stepped in, his left foot caught on a nail head in the floor, and he fell and injured himself on nails protruding from the side of the car which had fallen to the car floor.

The testimony continued with the statement that he then got up, looked out of the car, and relayed the signal to stop.

1. The appellant claims that 'The trial court erred in overruling the motion of defendant for...