Jusko v. Youngstown & N. R. Co.
| Decision Date | 18 January 1951 |
| Parties | , 46 O.O. 294 JUSKO v. YOUNGSTOWN & NORTHERN R. CO. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. A railroad company which places empty freight cars on a spur track owned by a steel company to be loaded by the latter's employees is under a duty to see that such cars are in a reasonably safe condition for loading, and such duty requires that the railroad company make an inspection of the cars sufficient to disclose any patent defect.
2. A railroad company in inspecting a freight car to determine whether such car is in a safe condition for loading is required to inspect only those parts which, in the ordinary course of events, will be used in loading. The coupler on a freight car is not a device necessary for loading or unloading such car.
3. Where a freight car is equipped with a ladder for ascending to and descending from the cartop, and an employee of a steel company, who is engaged in loading the car, fails to use such ladder for its intended purpose, and who, in descending from the cartop, steps on a coupling pin, resulting in his being thrown to the ground and injured, such employee thereby chooses a hazardous course over a safe one and, as a matter of law, is guilty of contributory negligence.
W. E. Stankiewicz and Clinton J. Wall, Youngstown, for appellee.
Manchester, Bennett, Powers & Ullman and John H. Ranz, Youngstown, for appellant.
This is an appeal on questions of law from a judgment of the Common Pleas Court of Mahoning County in an action wherein John Jusko, the appellee, was plaintiff, and the appellant, the Youngstown & Northern Railroad Company, was defendant.
At the conclusion of all the evidence defendant's motion for a directed verdict was overruled. The jury returned a verdict in favor of plaintiff in the sum of $15,000. A motion for judgment non obstante veredicto was overruled, after which judgment was entered on the verdict. Defendant's motion for new trial was overruled, and this appeal on questions of law was perfected.
The first question presented is whether the defendant was entitled as a matter of law to a judgment upon the evidence.
As revealed by the record, the following are the material facts:
Plaintiff was employed at the Ohio Works Plant of the Carnegie-Illinois Steel Corporation at Youngstown. From the yards of the defendant a spur known as the 'ash track' leads into the Ohio Works Plant, which spur is on the property of, and belongs to, the steel company. This track adjoins a conveyor which is used for loading cars with refuse from the plant. The conveyor consists of a belt moving over rollers from the ground level upwards at a 45 degree angle to about two feet above the top of an average hopper freight car. On October 20, 1947, the defendant, at the instance of the steel company, spotted some empty freight cars on this spur, for the purpose of being loaded. It was plaintiff's duty to load the cars by means of the conveyor and to keep the conveyor in running order. When one end of a car was filled to a heap and another portion was empty it was necessary for plaintiff to move the car, by use of a pinch bar, to a point where the conveyor could load the empty portion. At about 11:40 p. m. on October 20, the plaintiff noticed that a wire was entangled in the belt of the conveyor, which wire was impeding the normal operation of the conveyor. For the purpose of removing the wire and to see whether that portion of the car was sufficiently filled to require its movement, plaintiff climbed to the top of the car. He then removed the wire from the conveyor, observed the extent of the fill at the end of the car, and thereupon proceeded to descend to the ground. The car was equipped with 'grab irons' or an iron ladder at its end, which was in safe and proper condition. Plaintiff had climbed to the top of the car by use of this ladder.
Just what happened leading to his injury that night is revealed by his own testimony, which, in part, is as follows:
'As I was going down I put my foot down and did not know what it was on, but as I was getting ready to put my other leg I took a look and I see my right foot was on this pin, so I tested it like, and it seemed to hold my weight, and that is when I let the other foot go, and that's when I went down.
'The Court:
It is unnecessary to quote further the details of the record. It is sufficient to say that it appears that the plaintiff, while in the performance of his duty as an employee of the steel company, was going down the ladder backwards, i.e., he was on the iron ladder in the act of descending and was facing the car. When he reached a certain point there was a platform about six inches in width running across the full end of the car. However, plaintiff did not use the platform or the remaining steps of the ladder, but put his right foot on the upper end of a coupling pin, which was up, tested it, and then put his entire weight on the pin and was thrown to the ground.
Plaintiff, in going down, decided to and did test the...
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