Klunk v. Railway Co.

• Decision Date: 03 April 1906
• Docket Number: 9645
• Citation: 74 Ohio St. 125,77 N.E. 752
• Parties: Klunk v. The Hocking Valley Railway Company.
• Court: Ohio Supreme Court

77 N.E. 752

74 Ohio St. 125

Klunk v. The Hocking Valley Railway Company.

No. 9645

Supreme Court of Ohio

April 3, 1906

Action against railway company by locomotive fireman - For personal injury from defect in water gauge glass of locomotive - Burden of proof upon the plaintiff - To create presumption of negligence - Section 3365-21, Revised Statutes - Law of negligence - Law of evidence.

1. On the trial of an action against a railroad company brought by a locomotive fireman for a personal injury received by him in consequence of a defect in the water gauge glass attached to the locomotive upon which he was employed, an instruction that to overcome the effect of the prima facie evidence of negligence arising from proof of such defect, "the defendant company is required to satisfy the jury by a preponderance of the evidence that it was not negligent," is erroneous.

2. In such action the burden of proving, by a preponderance of the evidence, the particular negligence alleged, is at all times upon the plaintiff, and while proof of facts sufficient under the statute, (section 3365-21), to create a prima facie presumption of negligence against the defendant casts upon it the burden of producing evidence of equal weight or countervailing force, in order to control or destroy such presumption, yet proof of such facts does not impose upon the defendant the burden of establishing affirmatively, by a preponderance of the evidence, that it was not negligent.

3. The rule is that he who affirms must prove, and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party affirming must fail.

Suit was brought by the plaintiff in error, William H. Klunk, in the court of common pleas of Franklin county, Ohio, against the defendant in error, The Hocking Valley Railway Company to recover damages for an alleged personal injury sustained by him while in the performance of his duties as an employe of said railway company, in the capacity of locomotive fireman. In his petition, as and for his cause of action, plaintiff alleged that:

"On the thirteenth day of January, 1902, the plaintiff was in the defendant's employ in the capacity of a locomotive fireman, and then and there performing the duties incident to such employment upon engine No. 222 on a southbound siding just north of Marion, Ohio. That said engine was then and there the property and machinery of the defendant company that said defendant then and there disregarded its duty to furnish a safe and secure engine, and conducted itself so carelessly and negligently and unskillfully in this behalf that it provided an unsafe, defective and insecure appliance to said engine and boiler, to-wit, a worn and defective water glass or water glass gauge; that said gauge had become worn with age until the same was unfit and unsuited for said purposes as the defendant well knew, or by the use of reasonable caution and care should have known, but of which the plaintiff did not know and had not the means of knowing.

In consequence of said negligence of said defendant, then and there, while plaintiff in said capacity of fireman, was performing the duties of said fireman upon said engine, then and there in the defendant's service, and wholly without any fault or neglect of said plaintiff, the said water glass by reason of said unsafeness, defectiveness and insecurity burst and broke into many pieces, and one of the fragments thereof was then and there hurled into the eyeball of the plaintiff's left eye, by reason thereof plaintiff became sick, ill and unable to do any work for five weeks and incurred an expense of $---- in medical and other attendance in attempting to be cured, and completely lost the sight of his said left eye and is permanently injured thereby and therein to his damages in the sum of $10,000, for which he asks judgment."

The defendant railway company in answer to said petition, among other defenses, pleaded the general denial, assumption of risk, and contributory negligence on the part of plaintiff. The trial in the court of common pleas resulted in a verdict and judgment for the plaintiff. On error, this judgment was reversed by the circuit court, on the sole ground that the trial court erred in its instructions to the jury. To obtain a reversal of this judgment of the circuit court, the present proceeding in error is prosecuted in this court.

Mr. F. S. Monnett and Messrs. Pugh & Pugh, for plaintiff in error, cited and commented upon the following authorities:

Railway Co. v. Erick, 51 Ohio St. 146; 20 Century Digest, 204; Railroad Co. v. Burris, 14 O. F. D., 182; 111 F. 828; Brandon v. Cabiness, 10 Ala. 155; National Bank v. Baldenwick, 45 Ill. 375; Insurance Co. v. Paver, 16 Ohio 324; Hanson v. Stephenson, 32 Ia. 129; Broughton v. Smart, 59 Ill. 440; 1 Elliott on Evidence, sec. 129; Thayer's Preliminary Treatise on Evidence, 378; 4 Wigmore on Evidence, secs. 2483 to 2498, 2509; Jones v. Stevens, 5 Metc., 373; Allen v. Hawks, 11 Pick., 359; 1 Wharton on Evidence, sec. 357; Amos v. Hughes, 1 Mac. & Rob., 464; Story on Promissory Notes, sec. 181; McKenzie et al. v. Oregon Imp. Co., 31 Pac. Rep., 748; Hesse, Admx., v. Railroad Co., 58 Ohio St. 167; Railroad Co. v. Hesse, 62 Ohio St. 655; Railway Co. v. Hornsby, 202 Ill. 138; 66 N.E. 1052; Mineral Railway Co. v. Harris, 98 Ala. 326; 13 So. 377; Railway Co. v. Malone, 109 Ala. 509; 20 So. 33.

Mr. C. O. Hunter, for defendant in error, cited and commented upon the following authorities:

1 Greenleaf (15 ed.), chap. 3, sec. 74 (note); Scott v. Wood 81 Cal. 400; Davis v. Bartlett et al., 12 Ohio St. 534; Sanns v. Neal, 52 Ohio St. 56; Burnham v. Allen, 1 Gray, 500; Blanchard v. Young, 11 Cush., 345; Spalding v. Hood, 8 Cush., 605; Eaton v. Alger, 47 N.Y. 351; Caldwell v. Navigation Co., 47 N.Y. 290; Willett v. Rich, 142 Mass. 356; Cass v. Railroad Co., 14 All., 448; Heinemann v. Heard, 62 N.Y. 455; 22 Am. & Eng. Ency. Law (2 ed.), 1177; Bain v. State, 74 Ala. 39; North Chicago Str. Co. v. Louis, 138 Ill. 10; French v. Day, 89 Me. 441; Strand v. Railway Co., 67 Mich. 381; Altschuler v. Coburn, 38 Neb. 890; McKenzie v. Oregon Imp. Co., 5 Wash. 414; Thomas v. Paul, 87 Wis. 613; Railway Co. v. Erick, 51 Ohio St. 146; Hesse, Admr. v. Railway Co., 58 Ohio St. 170; Coal & Car Co. v. Norman, 49 Ohio St. 598; Troy v. Evans, 97 U.S. 3; Kelly v. Jackson, 6 Pet., 622; Birney v. State, 8 Ohio 230; Miller v. State, 3 Ohio St. 475; Crabtree v. State, 30 Ohio St. 382; Walters v. State, 39 Ohio St. 215; Lyon v. Fleahmann, 34 Ohio St. 156; Ferguson v. Guilbert, 16 Ohio St. 88; Shinn v. Tucker, 37 Ark. 588; Keener v. State, 24 S. E. Rep., 29; Moriarty v. Moriarty, 108 Mich. 249; State v. School District, 55 Neb. 321; Knopke v. Insurance Co., 99 Wis. 296; Lovejoy v. State, 62 Ark. 480; Pease v. Cole, 53 Conn. 53; Brown v. Mitchell, 102 N. C., 371; Jester v. Steiner, 86 Tex. 415; Best on Evidence (Am. ed. by Chamberlayne, 1883), sec. 256 (note); 1 Taylor on Evidence (9 ed.), 276; (Am. notes); Thayer's cases on Evi- dence, 44; Lamb v. Railway Co., 46 N.Y. 271; Powers v. Russell, 13 Pick., 76; Baxter v. Abbott, 7 Gray, 71; Com. v. Heath, 11 Gray, 303; Railway Co. v. Brazzil, 72 Tex. 233; Long v. Long, 44 Mo. App., 141; Livery Co. v. McKelvy, 55 Mo. App., 240; 4 Thompson, 66; Insurance Co. v. La Boiteaux, 5 Dec. Re., 242; 4 Am. L. Rec., 1; Crane v. Morris, 6 Pet., 598; Railway v. O'Doherty, 6 State Tr. (N. S.), 831; Bridge Corporation v. Butler, 2 Gray, 132; Broomfield v. Smith, 1 M. & W., 542; Tennessee Coal, etc., Co. v. Hamilton, 100 Ala. 252; People v. Bushton, 80 Cal. 160; Southworth v. Hoag, 42 Ill. 446; Oaks v. Harrison, 24 Ia. 179; Tarbox v. Eastern Steamboat Co., 50 Me. 345; State v. Flye, 26 Me. 312; Small v. Clewley, 62 Me. 157; Woodcock v. Calais, 68 Me. 244; Tourtellot v. Rosebrook, 11 Metc., 460; Morrison v. Clark, 7 Cush., 213; Sperry v. Wilcox, 1 Metc., 270; Wright v. Wright, 139 Mass. 177; Manistee Nat. Bank v. Seymour, 64 Mich. 72; Aulls v. Young, 98 Mich. 231; Seavy v. Dearborn, 19 N. H., 351; Shepardson v. Perkins, 60 N. H., 77; Blodgett v. Cummings, 60 N. H., 116; Blunt v. Barrett, 124 N.Y. 117; Goldschmidt v. Life Ins. Co., 102 N.Y. 486; Bell v. Skillicorn, 6 N. M., 399; Pusey v. Wright, 31 Pa. St., 387; Atlas Bank v. Doyle, 9 R. I., 78; Clark v. Hills, 67 Tex. 141; Tucker v. Sandidge, 85 Va. 546; Atkinson v. Goodrich Transp. Co., 69 Wis. 13; Moffat v. United States, 112 U.S. 24; United States v. Iron Silver Mine Co., 128 U.S. 673; Untermeyer v. Freund, 37 F. 342; State v. Lee, 37 A. 75; Railway Co. v. Powell, 89 Ga. 61; Kitner v. Whitlock, 88 Ill. 513; Smith v. Sac County, 11 Wall., 139; Combs v. Hodge, 21 How., 397; Collins v. Gilbert, 94 U.S. 753; Stewart v. Lansing, 104 U.S. 505; White v. McGarry, 2 Flip., 572; Matter of White, 6 Dem. 375; Pickup v. Insurance Co., L. R., 3 Q. B. Div., 594; Simpson v. Davis, 119 Mass. 269; Crowinshield v. Crowinshield, 2 Gray, 524; Scott v. Insurance Co., 1 Dill, 105; United States v. Shapleigh, 12 U. S. App., 26; N. Y. Acc. Ins. Co. v. Clayton, 19 U. S. App., 304; Yarbrough v. Arnold, 20 Ark. 598; Munson v. Atwood, 30 Conn. 102; Mead v. Husted, 52 Conn. 56; 52 Am. 554; Taylor v. Pegram, 151 Ill. 118; Robinson v. Randall, 82 Ill. 521; Bissell v. West, 35 Ind. 54; Welch v. Jugenheimer, 56 Ia. 11; Knowles v. Scribner, 57 Me. 495; Ellis v. Buzzell, 60 Me. 209; Schmidt v. Fire Ins. Co., 1 Gray, 529; Gordon v. Parmelee, 15 Gray, 413; Burr v. Willson, 22 Minn. 206; Thoreson v. Insurance Co., 29 Minn. 107; Rothschild v. Insurance Co., 62 Mo. App., 45; Union Stock Yards Co. v. Conoyer, 41 Neb. 629; Folsom v. Brawn, 25 N. H., 114; Seybolt v. Railway Co., 95 N.Y. 562; Jones v. Greaves, 26 Ohio St. 2; 20 Am. 752; Perley v. Perley, 144 Mass. 104; Burnham v. Allen, 1 Gray, 496; Simpson v. Davis...