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

• Decision Date: 13 November 1900
• Citation: 58 N.E. 804,63 Ohio St. 339
• Court: Ohio Supreme Court
• Parties: CINCINNATI, H. & D. R. CO. v. HEDGES.

58 N.E. 804

63 Ohio St. 339

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

Supreme Court of Ohio.

November 13, 1900

Error to circuit court, Butler county.

Action by one Hedges against the Cincinnati, Hamilton & Dayton Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

Syllabus by the Court

Section 2 of the act of 1890 (87 Ohio Laws, p. 149) does not, under the provisions of section 79, Rev. St., apply to a cause of action existing at the adoption of the act.

Millikin, Shotts & Millikin and R. D. Marshall, for plaintiff in error.

Aarson Wesco and Morey, Andrews & Morey, for defendant in error.

PER CURIAM.

Hedges was injured, while in the employ of the railway company, on November 23, 1889. The injury, as averred, resulted without fault on his part, from a defect in a brake he was then using in his employment, which was out of repair and defective by reason of the negligence of the company. Issues of fact were made up, and tried to a jury, which rendered a verdict in his favor. Judgment was rendered on the verdict by the court after overruling a motion for a new trial. On error the judgment was affirmed by the circuit court. The court charged the jury, among other things, to the effect that, if it found from the evidence that there was a defect in the brake that caused the injury, that fact raised a prima facie case against the company, and the plaintiff would be entitled to recover, if injured thereby without fault on his part. This we think, was error. The instruction was predicated upon the provisions of a statute adopted April 2 1890 (87 Ohio Laws, p. 149, § 2), which reads as follows ‘It shall be unlawful for any such corporation to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any manner defective. If the employé of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachments thereto belonging, owned and operated, or being run and operated by such corporation, such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is so sustained, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state, brought by such employé, or his legal representatives, against any railroad corporation...