Cleveland, T. & V. R. Co. v. Marsh

• Decision Date: 16 October 1900
• Citation: 63 Ohio St. 236,58 N.E. 821
• Court: Ohio Supreme Court
• Parties: CLEVELAND T. & V. R. CO. v. MARSH.

58 N.E. 821

63 Ohio St. 236

CLEVELAND T. & V. R. CO. v. MARSH.

Supreme Court of Ohio.

October 16, 1900

Error to circuit court, Summit county.

Action by Raymond G. Marsh against the Cleveland Terminal &amp Valley Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

The action in the court of common pleas was for the recovery of damages for a personal injury suffered by Raymond G. Marsh then of the age of 10 years, by reason of the explosion of a signal torpedo on the track of the railroad of the plaintiff in error. The injury occurred at the village of Myersville and at that place the railroad runs north and south, and the main street of the village, running east and west, crosses the railroad; the station and water tank being on the south side of the street, and a switch stand about 40 rods north of the street, and another about a quarter of a mile south of the street. The railroad company had employed Milo Swinehart as station agent, and it was his duty to light and place upon the switch stands each evening certain lights supplied by the company for the purpose, and to bring the lanterns in each morning, and clean and fill them, so as to have them ready for use the next evening. The station agent, without authority, and without the knowledge of the company, employed the Marsh boy to attend to the lamps; and when on his way to the north switch stand with the light on the evening of April 18, 1896, he found a signal torpedo by the side of one of the rails, at a point about 20 rods north of the street, and, not knowing its dangerous character, he put down his lamp, and exploded the torpedo by pounding it with a stone, and the explosion seriously injured him. The petition averred, and the evidence introduced tended to prove, that people including children, were generally, for years, accustomed to pass along and upon the railroad where the injury occurred, without hindrance, and with the full knowledge of the railroad company. On the day of the accident, at the hour of 12:33 noon, a local freight train arrived at Myersville station from the north, and ran upon the switch north of the public highway, entering the same at the north end, and there remained until a passenger train, also from the north, which arrived at 12:47 p. m., had passed, and a passenger train from the south, which arrived at 1:01 p. m., had also passed. At 1.03 p. m. it pulled out onto the main track from the south end of the switch, which was about one-fourth of a mile south of the highway, and departed south. Upon the trial there was evidence, admitted over the objection of the defendant below, which tended to prove that one of the crew of the freight train obtained a signal torpedo from the station agent while the train was on the side track that day, and then proceeded towards the north end of his train. As to who placed the torpedo upon the railroad track, or how it came to be there, there was no evidence except the above,-as to one of the train crew having that day obtained such torpedo from the station agent. At the close of plaintiff's evidence, counsel for the railroad company moved the court to rule out all the evidence relating to the travel of people generally upon and along the railroad track north of the highway, which motion was overruled and exceptions taken. There were also proper exceptions saved to the introduction of certain testimony, and to the refusal of the court to charge as requested, and to the charge as given, which fully appear in the opinion. There were a verdict and a judgment for the plaintiff below, which was affirmed by the circuit court; and now the railroad company comes here, seeking to reverse the judgments of the lower courts.

Williams and Minshall, JJ., dissenting.

Syllabus by the Court

1. It is error to allow a witness to testify, over the objection of the other side, as to the identity of a person, without first qualifying himself by showing that he has some knowledge on the subject.

2. A witness should testify in accordance with the knowledge he has at the time of testifying, and is not confined to the knowledge he may have had at a previous time.

3. One who is invited by a servant of a corporation in charge of its work or service to assist him therein, and does so with some purpose or benefit to be subserved in his own behalf in addition to the purpose of so assisting, is not a volunteer and is entitled, while so assisting, to be protected against the negligence of the servants of the company.

4. While a railroad company owes a duty to the public to keep its tracks free from unnecessary danger along where the public are allowed to use such tracks as a way for travel one who is not using such tracks as such way cannot be heard to complain of the breach of such duty, and, in case of injury to him, cannot bring the breach of such duty to his aid in attempting to recover for an injury caused by reason of some other alleged negligence of the company.

5. To establish negligence, there should be either direct proof of the facts constituting such negligence, or proof of facts from which negligence may be reasonably presumed. There should be no guessing by either court or jury.

J. P. Bradbury and Allen & Cobbs, for plaintiff in error, cited the following cases: Wood, Mast. & S. § 455, and notes; Flower v. Railroad Co., 69 Pa. St. 210, 8 Am.Rep. 251; Church v. Railway Co., 50 Minn. 218, 52 N.W. 647,16 L.R.A. 861;Mayton v. Railroad Co., 63 Tex. 77, 51 Am.Rep. 637.

Tibbals & Franks, for defendants in error, cited the following cases: Railway v. Bolton, 43 Ohio St. 224, 1 N.E. 333;Wischam v. Richards, 136 Pa. St. 109, 20 A. 532,10 L.R.A. 97;Osborne v. Railroad Co., 68 Me. 49, 28 Am.Rep. 16;Barstow v. Railroad Co., 143 Mass. 535, 10 N.E. 255;Eason v. Railway Co., 65 Tex. 577, 57 Am.Rep. 606;Rolling-Mill Co. v. Corrigan, 46 Ohio St. 283, 20 N.E. 466;Johnson v. Water Co., 71 Wis. 553, 37 N.W. 823,5 Am.St.Rep. 243;Rhodes v. Banking Co., 84 Ga. 420,10 S.E. 922,20 Am.St.Rep. 362;Evarts v. Railway Co. (Minn.) 57 N.W. 459.

BURKET, J. (after stating the facts).

The first question arises as to the introduction of part of the evidence by Dr. Bauer. He testified that on the day of the accident he was in the station when the freight train from the north pulled in upon the side track, and that, ‘While in there, one of the train crew, I took it to be, came in and held a conversation-’ Objection being made, counsel for plaintiff said, ‘Describe this man that came in.’ Counsel for defendant, still objecting, said, ‘He may describe the man.’ The witness answered, ‘He was a stranger to me, but he was a trainman,-one of the train crew.’ The court was asked to exclude and rule out this testimony, but refused to do so, to which there was an exception saved. This testimony was not competent. When a party offers evidence, he must first qualify his witness to speak as to the subject-matter. Here the witness failed to show that he was qualified to say whether the man was one of the crew or not. And, objection being made by counsel for the defendant, it was incumbent upon the plaintiff to show that the witness had some means of knowledge upon the subject, and was not just merely guessing at it. The same witness also testified that this trainman obtained an object from the station agent, and that the trainman and the station agent had some conversation about it, and the station agent said: ‘Here is one. I have got one,’-and handed it to the trainman; that the object was a metallic box about 3 inches long, 2 1/ 2 inches wide, and 3/ 4 of an inch thick, with rounded ends; that at the time he did not know what it was, but that he knew at the time of testifying that it was a signal torpedo. To all of this testimony there was objection, and proper exceptions saved. As the witness had not qualified as to whether the man who came into the station was a trainman or not, the evidence as to the conversation was incompetent. If the witness did not know on that day what the object so delivered by the station agent was, but, by knowledge subsequently obtained, knew at the time he testified that it was a signal torpedo, it was competent for him to testify to the fact as he knew it to be at the time of testifying. Runyan v. Price. 15 Ohio St. 1. A witness may see a stranger and not know who he is, but by knowledge subsequently obtained, as by acquaintance and association with him, he may be able years afterwards to testify positively who the stranger was. A witness should testify as his knowledge is at the time of testifying, and not as his ignorance was at a previous time.

Upon the trial, counsel for the railroad company requested the court to charge as follows: ‘If you find that at the time the plaintiff, Raymond Gilbert Marsh, received his injury, he was on the property of the railroad company for no purpose except to place the north switch light in position, pursuant to the request of the station agent, Swinehart, then I say to you that the fact that the railroad company had permitted the public to travel over this part of its property without objection would not entitle the plaintiff to receive at the time of his injury that degree of protection from injury which such public would have been entitled to receive, nor that degree of protection he would have been entitled to receive had he been upon the property as one of the public.’ This request was refused, and the court charged the jury upon the same subject as follows ‘And I say to you further upon this point that it is negligence for the servants of such railroad company, wantonly and needlessly, and without notice, warning, or other precaution, to place and leave exposed to observation, at such point or place on its railroad where the public, including children, are...