Cleveland, A. & C. Ry. Co. v. Workman

• Decision Date: 24 June 1902
• Citation: 64 N.E. 582,66 Ohio St. 509
• Parties: CLEVELAND, A. & C. RY. CO. v. WORKMAN.
• Court: Ohio Supreme Court

64 N.E. 582

66 Ohio St. 509

CLEVELAND, A. & C. RY. CO. v. WORKMAN.

Supreme Court of Ohio.

June 24, 1902

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error to circuit court, Knox county.

Action by one Workman, administrator of Arleigh J. Mead, deceased against the Cleveland, Akron & Columbus Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

The defendant in error, as the administrator of Arleigh L. Mead, deceased, sued in the court of common pleas of Knox county to recover damages from the plaintiff in error for the death of his intestate, caused, as alleged, by the negligence of the plaintiff in error. The negligence charged was that the conductor and engineer of the train were negligent in running the train without a headlight, and in violation of the village ordinance, at a high and dangerous rate of speed; that the bell was not rung, or any notice or warning given of its approach in any way whatever; that the train was not run on schedule time, but was an extra. It is alleged that the said afternoon was very foggy, making it very dark, so that it was ‘ very difficult, if not impossible, to see objects on the said railroad more than a few rods in front of the engine.’ The answer denied the allegations of negligence, and denied specifically the passage or existence of the alleged ordinance, and charged the deceased with contributory negligence. A verdict and judgment were rendered for the administrator, which was affirmed in the circuit court, and the cause comes into this court for review.

The facts are substantially as follows: The railway of the plaintiff in error passes through the northern part of the corporate limits of Buckeye City in an almost east and west direction, crossing the highway at right angles; the general direction of the road, however, being north and south. At the southeast corner of the crossing is Danville station. The railroad is perfectly straight east and west of the crossing for more than a mile each way. There is a descending grade from a point something over a mile east of the station. A switch extends along the south side of the main track, starting at the station and running east a distance of 1,020 to 1,040 feet; and a passing track, starting at the west side of the highway, 100 to 150 feet north of the station, and running west about 2,050 feet. This passing track was entirely clear on the day of the accident. The whistling post for the crossing is about a quarter of a mile east of the station. The west corporation line of Buckeye City was 582 feet from the west end of the platform, and 603 feet from the station. The accident happened about 683 feet from the station. It happened on the 13th day of January, 1899. For many years the father of the decedent, J. H. Mead, had been station agent for the defendant company at this place. It was a part of his duty to light the switch lamps in the evening, and bring them in in the morning. He was partially crippled, and, to assist him in the performance of his duties, he purchased, for his own convenience, and used, a ‘ speeder,’ or three-wheeled vehicle, which could be run on the track, propelled by hands and feet. He did this without objection on the part of the company. The speeder at the time of the accident had a brake, but the brake had been lost or broken off, so that there was no way of stopping it except by the hands. The deceased at the time of the accident was about 16 years old, and was in the employ of the company, at $5 per month, as his father's assistant and night man. His duties were to light the switch lamps in the evening and bring them in in the morning, attend to the two night trains at the station, and, when not in school, carry the mail. Mr. Mead, the father, permitted his son, the deceased, to use the speeder in doing his work, but cautioned him to be careful and to look out for trains when on the track. He had forbidden him to allow anyone else on it with him, but had seen him once or twice take another boy with him. It appeared in evidence that every two or three days, and sometimes oftener, extra trains ran through Danville without stopping and that one of the rules of the road provided: ‘ Extra trains may pass over the road at any time without previous notice, and foremen must always be prepared for it. Anything that interferes with the safe passage of trains at full speed is an obstruction.’ At the time of the accident, one J. P. McCaskey, a telegrapher out of employment, was temporarily helping Mr. Mead in the office. While Mr. Mead and Mr. McCaskey were in the office together during the afternoon, McCaskey, who was sitting at the instrument table, heard orders going over the wires, and turned to Mead and told him that an extra would meet No. 23 at a station east of Danville,-either Brinkhaven or Baddaw Pass. No. 23 passed Danville going north at 2:52. The extra coming south (west) actually passed at Brinkhaven. Mead, who was busy at the time, paid little attention to the matter, and it passed out of his mind. Neither he nor McCaskey communicated the fact of the extra being on the road to Arleigh, the deceased. Mr. Mead, the station agent, left the station about 3 o'clock, and went home; but, before he left, the deceased came in. Shortly after his father had left, the deceased took the speeder and a boy companion (one Herbert Parrish), and started out to light the switch lamps. It does not appear that Mr. Mead, the father, knew that the deceased was going on the speeder that day; nor did he or McCaskey, nor any one, so far as the evidence discloses, inform the deceased that an extra was on the road. The boys backed up the main track to the north switch light, and, having lighted it, they turned toward the station, where they stopped for a moment to ‘ hello’ to Mr. Burrows' horse to get off the track, and then went on their way down the main track, toward the south switch light. They sat side by side, with their faces toward the south, talking together, and did not at any time, until just before the accident occurred, so far as known, look behind them. They both worked the handle bars, and made the speeder go as fast as they could. The extra had no orders to stop at Danville, nor any reason to expect any. The rule of the company required each train, when running after sunset or obscured by fog, to display a headlight. But there was no headlight burning. The engineer testifies that a headlight would not have thrown a glare through the fog to enable parties to see that there was something coming, but there is other testimony on the subject. The train was going at full speed. There is some conflict in the testimony as to the rate of speed. The trainmen put it at 25 to 30 miles an hour, and plaintiff's witnesses about double that. The engine whistled, but whether it whistled for the crossing or not, or whether it gave an alarm whistle before the accident occurred, is a matter of some dispute. It does not appear that the boys heard the whistle. McCaskey, being in the station, heard the whistle, and running out, called to the boys as loud as he could. They were then some 50 feet beyond the west side of the crossing. Failing to attract their attention, he stood upon the corner of the platform, and tried to give the engineer a signal to make him stop the train or whistle. The engine was then right up to him. The target was white, which indicated there were no orders there for the train, and no occasion to stop, and the road was clear. As the engineer passed, he saw McCaskey give a signal. He did not understand it, and turned for an instant to look again at the target, and then at once turned his face down the track; and at the same instant the fireman saw the boys at the distance of one and one-half telegraph poles ahead of the train. The boys were facing south then, with their backs to the train. The engineer claims to have given the alarm whistle at this time, applied the air brakes to the engine, gave a signal for the brakes, reversed his engine, and did everything in his power to stop the train. The conductor and the two brakemen were in the caboose, and, at the whistle for brakes, they ran out and set them as fast as they could. Parrish, the boy who accompanied the deceased, says that the first he knew of the danger was the rumbling of the train. They both looked back, but the train was close upon them. The trainmen say that immediately upon blowing the alarm whistle the boys turned and looked back. Parrish, sitting on the left side, succeeded in getting off, but the deceased fell back upon the track and was instantly killed. A witness who was at the station had seen the boys come down the track on the speeder. He heard the whistle for the station as he was getting on his wagon, and drove across the track, and called to the boys as loud as he could, and failed to get their attention. They were then a telegraph pole and a half from the crossing.

The existence of the alleged ordinance of Buckeye City prohibiting the running of cars through its corporate limits at a speed exceeding eight miles an hour was distinctly put in issue by the pleadings. On the trial the plaintiff called as a witness the mayor of Buckeye City to prove that he had given some notice to the company as to the speed of trains through the corporation. The defendant objected, and the court ruled that the plaintiff should first prove the ordinance, if there was one. Thereupon the witness produced the ordinance book containing the record of the supposed ordinance. Objection was made for the reason that the book was not the minutes of the proceedings of the council, nor did the record show that the supposed ordinance had ever been signed by the mayor. Thereupon the former mayor was called and a...