Inman v. Baltimore & O. R. Co.

• Decision Date: 07 May 1958
• Court: Ohio Court of Appeals
• Parties: , 9 O.O.2d 167 INMAN, Appellee, v. BALTIMORE & OHIO RAILROAD CO., Appellant. *

Page 124

108 Ohio App. 124

161 N.E.2d 60, 9 O.O.2d 167

INMAN, Appellee, v. BALTIMORE & OHIO RAILROAD CO., Appellant. ^*

Court of Appeals of Ohio, Summit County.

May 7, 1958.

Syllabus by the Court

1. While the Federal Employers' Liability Act (Section 51 et seq., Title 45 U.S. C.A.) does not in terms require the employer to furnish the employee with a safe place to work, there is imposed upon the employer the common-law duty to exercise reasonable care to furnish its employee with a safe place to work.

2. The basis for recovery, under the Federal Employers' Liability Act (Section 51 et seq., Title 45 U.S.C.A.), by an injured employee, is negligence of the employer in failing to provide a safe place for such employee to work, which negligence proximately causes, in whole or in part, the injury complained of.

3. There is no duty on an employer railroad to anticipate that an employee, while in the discharge of his duties as a crossing watchman, might be injured by the actions of a drunken driver while violating traffic statutes and ordinances; and, where there is no evidence of prior occurrences of such kind, there is no negligence on the part of such employer railroad for failure to guard against the possibility of such occurrence, and such occurrence is not reasonably foreseeable by such employer railroad.

4. In an action by a flagman against his employer railroad under the Federal Employers' Liability Act (Section 51 et seq., Title 45 U.S.C.A.) to recover for injuries received when struck by a motor vehicle, being operated in violation of law, at a railroad grade crossing, it is prejudicial error for the court to refuse to instruct the jury that the railroad, 'in the exercise of ordinary care to provide' the employee 'a reasonably safe place to work, was not required to anticipate or foresee such violation' of statutory traffic provisions.

5. In such case, it is prejudicial error to charge the jury that the operator of the vehicle which struck the employee flagman was guilty of negligence as a matter of law without instructing the jury of what such negligence consisted.

6. In such case, in the absence of knowledge that the operator of the vehicle which struck the employee flagman refused to comply with his statutory duties, both the employer railroad and the employee flagman had a right to assume he would comply therewith.

Ray J. McGowan and Rosser J. Jones, Akron, for appellee.

Wise, Roetzel, Maxon, Kelly & Andress, Akron, for appellant.

STEVENS, Judge.

The action filed in the Court of Common Pleas of Summit County, Ohio, by plaintiff, sought the recovery of damages for personal injuries sustained by him while in the performance of his duties as a crossing flagman at Home and Tallmadge Avenues in the city of Akron.

The defendant in the trial court is a railroad company, engaged in interstate commerce within the meaning of the Federal Employers' Liability Act (Section 51 et seq., Title 45 U.S.C.A.), and the plaintiff was an employee of defendant, concededly within the class of persons entitled to the benefits of that Act.

The petition of plaintiff alleged that:

On January 2, 1952, plaintiff, while discharging his duties as crossing flagman, was standing on Tallmadge Avenue, at a point just west of defendant's tracks at the Home Avenue intersection with Tallmadge Avenue, warning the traveling public of the presence of one of defendant's trains, when he was suddenly and violently struck by an automobile being driven in a northeasterly direction on Home Avenue and making a left turn into Tallmadge Avenue at said intersection, with resultant serious injuries.

As the case was submitted to the jury by the trial court, the petition contained the following specifications of negligence:

1. '* * * the defendant negligently and carelessly ordered and directed plaintiff to perform his duties as a flagman at said crossing, when it was impossible for him to observe vehicles entering said intersection from Home Avenue and without taking any measures to prevent him from being struck, as aforesaid.'

2. '* * * failed to place another employee at said crossing to watch for other trains approaching said crossing, while plaintiff was on duty flagging, to the end that plaintiff could keep a lookout and watch for traffic proceeding from Home Avenue into said intersection, and particularly the vehicle that struck plaintiff as aforesaid.'

For answer to the petition of plaintiff as subsequently amended, defendant admitted the following:

1. Its corporate existence as a railroad, owning and operating railroad lines through several parts of the United States, one of which lines extends into and through the city of Akron, Ohio.

2. That on January 2, 1952, plaintiff and defendant were engaged in interstate commerce.

3. That Tallmadge and Home Avenues were duly dedicated public streets in the city of Akron, which intersected.

4. On information and belief, that on or about January 2, 1952, at 12:10 a. m., while plaintiff was on duty as a flagman at the above-mentioned intersection, he was struck by an automobile and sustained some personal injuries, but denied that the same were of the nature and character alleged.

All other allegations of the petition were denied.

Upon trial to a jury, a verdict for plaintiff in the amount of $25,000 was returned, upon which judgment was duly entered.

This appeal on questions of law ensued.

The pleadings in this case do not, in terms, present the claim of plaintiff that defendant negligently failed to furnish plaintiff with a safe place to work, under the Federal Employers' Liability Act. However, in view of the pronouncement in paragraph 16 of the headnotes in Denny v. Montour R. Co., D.C., 101 F.Supp. 735, that question was in the case, and the court was required to charge thereon.

It is stated in Ellis v. Union Pacific Rd. Co., 329 U.S. 649, at page 653, 67 S.Ct. 598, at page 600, 91 L.Ed. 572:

'The Act does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur. And that negligence must be 'in whole or in part' the cause of the injury. 45 U.S.C. § 51, 45 U.S.C.A. § 51, * * *.'

In Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444, the fourth paragraph of the headnotes appearing in the Lawyers Edition states:

'4. An employer is under a common-law duty to use reasonable care in furnishing his employees with a safe place to work.'

It is thus apparent that, while the Act itself does not in terms require the employer to furnish the employee with a safe place to work, the cses decided by the Supreme place to work, the cases decided by the Supreme Act do impose upon the employer the common-law duty to exercise reasonable care to furnish his employee with a safe place to work.

The basis for recovery by an injured employee under the Federal Employers' Liability Act is therefore negligence of the employer in failing to provide a safe place for the employee to work, which negligence proximately causes, in whole or in part, the injuries of which complaint is made.

In 29 Ohio Jurisprudence, Negligence, Section 68, the following appears:

'It is a well-established rule that to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence alleged, and that it was such as might or ought to have been foreseen in the light of the attending circumstances. In contemplation of law, an injury that could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable.'

Let us now examine this record in the light of the foregoing statement of the applicable rules.

Tallmadge Avenue, an east and west traffic artery in the city of Akron, is intersected by Home Avenue, a street running in a northeasterly and southwesterly direction. Three tracks of defendant extend through the intersection of these two streets in a northwesterly and southeasterly direction, the most easterly being a switch track, the middle track the eastbound main track, and the most westerly the westbound main track.

The defendant installed the following equipment to warn the defendant and the traveling public of the approach of trains to said crossing:

Highway warning signals known as 'flasher lights' at all street approaches to the crossing, consisting of two lights with red lenses directed toward approaching traffic, which, when activated, gave a flashing signal warning to motorists of the approach of a train. On the side of the body of these lights were windows which emitted a white light when the lights were in operation.

In the watchman's shanty at the southeast corner of Tallmadge Avenue, the defendant installed a warning or 'tell-tale' light to warn the watchman of the approach of trains, and a listening phone on which could be heard the dispatcher at XN Tower, 1 1/5 miles north of the crossing, issuing orders to trains and giving their location on the line.

Outside the shanty, on a 25-foot pole near the south curb of Tallmadge Avenue east of the crossing, was an amber light, which was activated and would light up when trains approached the crossing.

To the south of the crossing was a block signal on a mast 27 feet high, consisting of a disc with two red lights in a horizontal position, and two yellow lights in a diagonal position, with a white light in the center of the disc.

A red signal appeared when a westbound train was within the block, requiring the engineer of the following train to stop before reaching the signal.

A yellow signal required the engineer of a westbound train in the block to reduce his speed to 35 miles an hour.

The white light, which could be seen from the crossing, would appear when either the red or yellow signal was in operation.

When none of said lights was in operation, this indicated the...