Brian Fitch v. the Baltimore & Ohio Railroad Co., 82-LW-3613

• Decision Date: 04 June 1982
• Docket Number: 82-LW-3613,L-82-019
• Parties: Brian Fitch, APPELLANT, v. The Baltimore & Ohio Railroad Company, et al. APPELLEES. C. A.
• Court: Ohio Court of Appeals

Brian Fitch, APPELLANT, v. The Baltimore & Ohio Railroad Company, et al APPELLEES.

No. L-82-019.

82-LW-3613 (6th)

Court of Appeals of Ohio, Sixth District Lucas

June 4, 1982

APPEAL FROM LUCAS COUNTY COMMON PLEAS COURT NO. CV80-2998.

DECISION & JOURNAL ENTRY

PER CURIAM

This cause came on to be heard upon the record in the trial court. Each assignment of error was reviewed by the court and upon review the following disposition made:

Plaintiff-appellant Brian Fitch is appealing from a judgment of the Lucas County Court of Common Pleas which granted summary judgment in favor of defendant-appellee, The Baltimore & Ohio Railroad Company, and dismissed appellant's complaint against appellee.

On October 17, 1979, appellant was injured while riding his bike at which time he was struck by a car driven by Eddy Gross, an employee of appellee. At the time of the accident, Eddy Gross was on his way to work at the railroad yard located in Rossford, Ohio. Eddy Gross worked as a brakeman for appellee and was expected to be available for employment on 1 1/2 hours notice. Appellant sued both appellee and Eddy Gross. The dismissal of appellant's cause of action against appellee is the only issue raised by this appeal.

Appellant's sole assignment of error is:

"The Trial Court erred in granting the motion of defendant, The Baltimore & Ohio Railroad Company, for summary judgment."

Appellant contended in the trial court, and contends on appeal, that Eddy Gross was acting within the scope of his employment at the time of the accident so that appellee, based upon respondeat superior, is liable for Eddy Gross's negligence. In Boch v. New York Life Insurance Co. (1964), 175 Ohio St. 458, the court held as follows regarding a master's liability for his servant's negligence:

"2. As a matter of law, a master is not liable for the negligence of his servant while driving to work at a fixed place of employment, where such driving involves no special benefit to the master other than the making of the servant's services available to the master at the place where they are needed." Boch v. New York Life Insurance Co., supra, at 459.

The trial court found as follows regarding the issue of whether Eddy Gross's driving to work conferred a special benefit on appellee:

"The railroad yard located at Rossford, Ohio and maintained by defendant B & O was a fixed place of employment for Mr. Gross on the day of the accident, and his driving to it involved no special benefit to his employer other than to make his services available to it there. The fact that Mr. Gross was required to be available to be called to work

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