Burke v. Michigan Central Railraod
| Decision Date | 03 July 1917 |
| Docket Number | 15339 |
| Parties | Burke v. Michigan Central Railroad Co. |
| Court | Ohio Supreme Court |
Negligence - Failure to support averments of petition - Duty to direct verdict - At conclusion of plaintiff's evidence, when - Failure to properly place push-pole - Duty to look for obstruction on railway tracks - Interstate or intrastate employment - Interrogatories to pleading - Answers there to determinative, when.
The original action out of which this proceeding in error grows was brought by William Burke in the common pleas court of Lucas county, to recover from The Michigan Central Railroad Company damages for personal injuries suffered by him while in the employ of that company.
For a first cause of action the plaintiff averred facts constituting a cause of action under the Employers' Liabilty Act of Ohio, and for a second cause of action adopted each and all of the allegations in his first cause of action and further averred that the defendant was engaged and the plaintiff was employed in interstate commerce.
The petition averred that the defendant was negligent in placing a freight car too close to the passing track, so that one end of a push-pole lying athwart the pilot of the engine on which the plaintiff was riding came in contact with a stirrup on a box car, causing the other end to fly up and strike the plaintiff on the back of the head, producing the injuries complained of; that the defendant negligently allowed a young and inexperienced fireman to run its locomotive; that the locomotive was negligently operated; and that the engineer in charge and the fireman running said locomotive failed to use ordinary care to observe the projecting corner of the box car, and negligently continued to move the locomotive past the car, after plaintiff had taken his post on the pilot thereby placing him in peril which he could not escape.
The defendant for answer to the petition admitted its corporate capacity, and admitted that at the time named in plaintiff's petition it was engaged and the plaintiff was employed in interstate commerce. It admitted that the plaintiff, while riding upon the front of the switch engine working in its yard, was struck and injured, but denied the character and extent of the injuries as pleaded in the petition, and particularly denied each and every allegation of negligence therein charged against it; and, further answering, averred that at the time plaintiff received his injuries he was guilty of negligence which contributed directly and proximately to cause his injury, in this, to-wit, that as head switchman the plaintiff at the time had full charge and control of the push-pole well knowing that the defendant had provided a safe place and facilities for carrying this push-pole at the side of the tender to said engine, where the rules of the defendant, with which the plaintiff was familiar, required this push-pole to be carried when not in use; that plaintiff voluntarily, and without any reason or necessity therefor, placed this push-pole across the front of the engine, where same was apt to and did jostle to one side and strike the car standing upon the sidetrack, and that, without the knowledge and direction of the defendant, plaintiff voluntarily and without reason or necessity there-for rode upon the front of the engine, in front of the push-pole, when the engine was moving, and was thereby struck and injured. And the defendant further averred that the plaintiff in placing the push-pole across the front of the engine, and in riding in front thereof upon the engine, assumed the risk of being injured thereby, and that the plaintiff's injuries resulted from the hazards and dangers incident to his duties, which he assumed as part of his contract of employment.
The plaintiff in reply denied each and every allegation in the answer, except such as admit or deny the allegations set forth in plaintiff's petition in his first and in his second cause of action, respectively; and to this reply plaintiff annexed certain interrogatories, numbered one to five, which he asked that defendant be required to answer. The interrogatories and answers are as follows: INTERROGATORY ONE.
What if any, record, is in the possession or under the control of the defendant, made and kept in the regular and ordinary course of defendant's business, for the purpose of showing, among other things, and purporting to show, among other things, the description, origin and destination of shipments, which plaintiff and the said switching crew were engaged in handling at the time plaintiff was injured? ANSWER.
I have in my possession and subject under my control, a record showing, among other things, the description, origin and destination of shipments which the plaintiff and the said switching crew were engaged in handling at the time plaintiff was injured. INTERROGATORY Two.
Of what do such records consist? ANSWER.
Such records consist of On Hand Yard Reports, Shipping Orders and copies of Way Bills. INTERROGATORY THREE.
In whose possession, or under whose control or custody are such records? ANSWER.
Such records are in my possession and subject to my control, other than the On Hand Yard Reports, and such reports are in the custody and control of General Yard Master, E. Holst. INTERROGATORY FOUR.
Are you able, by referring to such records, to designate and describe what, if any, of the shipments referred to in interrogatory one, originated at or were destined for some point or points outside the State of Ohio? ANSWER.
Yes. INTERROGATORY FIVE.
If you have answered the last question in the affirmative, please designate and describe such interstate shipments, if any. ANSWER.
Two of said cars were to be loaded and destined to Lawton, Michigan one of said cars was destined for...
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