Lake Shore & M.S. Ry. Co. v. Murphy

CourtUnited States State Supreme Court of Ohio
Citation33 N.E. 403,50 Ohio St. 135
Decision Date07 March 1893
PartiesLAKE SHORE & M. S. RY. CO. v. MURPHY.

50 Ohio St. 135
33 N.E. 403

LAKE SHORE & M. S. RY. CO.
v.
MURPHY.

Supreme Court of Ohio.

March 7, 1893.


Error to circuit court, Erie county.

Action by John Murphy, administrator of the estate of Anthony Murphy, against the Lake Shore & Michigan Southern Railway Company, to recover damages for causing the death of the intestate. There was judgment for plaintiff, and, defendant's motion for a new trial being overruled, it brings error. Affirmed.

The other facts fully appear in the following statement by SPEAR, J.:

Action below was against the Lake Shore & Michigan Southern Railway Company for the killing of Anthony Murphy, whose death occurred while working for the company as a track repairer, near Sandusky, Ohio, August 3, 1888, by being struck by the pilot beam of a locomotive drawing a freight train. The negligence alleged was the failure to give warning, and for not providing a proper rule requiring warning to those at work on the track of the approach of trains. The suit was brought for the benefit of the widow and children. The answer admitted Murphy was in the company's employ, and struck by a locomotive pulling a freight train, and so injured that he died. It denied the other allegations of the petition, and averred that the deceased caused the injury by his own want of care. This latter averment was denied by the reply. At the trial the defendant asked the court to charge the jury that ‘upon the undisputed facts in this case it appears that the defendant railway company was not guilty of actionable negligence, and that the deceased was guilty of contributory negligence, which brought about his death, and the verdict of the jury should be for the defendant.’ This request the court refused to give, and to this refusal the defendant excepted. The defendant also excepted to the following parts of the charge as given, viz.: (1) ‘The defendant admits that no means were especially employed by it to give signals to those who were engaged in repairing the track of approaching trains, and whether the defendant was guilty of negligence in this respect is a question which it is for the jury to determine. It was the duty of the defendant to employ and use ordinary care to prevent injury to its employes, but railroad companies are not insurers against accidebts and injuries to their employes. As a matter of law they are only required to use ordinary care and exercise ordinary precaution and prudence, and adopt ordinary agencies and means to prevent injuries to their employes. They are not bound to employ the highest degree of care to that end.’ (2) ‘The question of ordinary care is to be determined by the jury from a consideration of all the evidence in the case. No general rule can be given as to what in law constitutes ordinary care; it depends upon the circumstances of each particular case. * * *’ (3) ‘Whether, before the injury complained of, the defendant in this case had adopted such rules, and whether the deceased had knowledge of such rules, and whether he was violating the same when he received the injuries which caused his death, and whether, if he was so violating them, such violation contributed to the injuries, are questions of fact to be determined by the jury from the evidence.’ (4) ‘If the jury should find from the evidence that the defendant is guilty of ordinary negligence, and that the same resulted in the death of Anthony Murphy, and also that the deceased was without fault in the premises, then the plaintiff is entitled to such damages as the jury may deem, from the evidence and proofs, a fair and just compensation therefor, having reference only to the pecuniary injuries resulting from such death to the widow and next of kin, not exceeding the amount claimed in the petition.’ A verdict for $1,600 was rendered. Motion for a new trial was overruled, and judgment entered, which was affirmed by the circuit court.



Syllabus by the Court

In an action to recover of a railway company for the death of a workman, the evidence tended to show that the deceased was 62 years of age at the time of the killing, and in good health; that he left a widow, one minor child, and three other children who had reached the age of majority; that the wife resided with one of the adult sons, at Louisville, Ky.; that the deceased had a house in Sandusky, Ohio, where he lived, and to which, when working away from Sandusky, he went on Saturday nights, going thence to his work on Monday mornings. The evidence further tended to show that on the day of the accident the deceased was at work upon the track, with 18 or 20 others, under the charge of a boss, who directed the work to be done, and the manner of doing it. The men were engaged in bolting rails together, and the duty of the deceased required him to stoop over the rail, and fasten to it the side plates by putting them on with bolts, which were fastened with nuts on the outside. To do this he had to lean over far enough to place in proper position the plates and bolts and screw up the nuts with his fingers as far as they would go, and then tighten them with a wrench. The rails on which he was working rested on the ties outside of the fixed rail of the track, but near to it, and the most of this work was done while the workman was stooping over, facing the track, with his head in such position that he could not, without interrupting the work, see any considerable distance in either direction...

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26 practice notes
  • Louisville & N. R. Co. v. Parker, 6 Div. 471.
    • United States
    • Supreme Court of Alabama
    • June 27, 1931
    ...186 S.W. 173 (notice of person on the track); Brightwell v. Lusk, 194 Mo.App. 643, 189 S.W. 413; Lake Shore & M. S. Ry. Co. v. Murphy, 50 Ohio St. 135, 33 N.E. 403; Louisville & N. R. R. Co. v. Eversole, 178 Ky. 67, 198 S.W. 548, L. R. A. 1918B, 214; Engel v. Chicago, B. & Q. R. Co., 111 Ne......
  • McLaine v. Head &, Dowst Co.
    • United States
    • Supreme Court of New Hampshire
    • April 1, 1902
    ...214; Railway Co. v. Triplett, 54 Ark. 289, 15 S. W. 831, 16 S. W. 266; Railway Co. v. Lavalley, 36 Ohio St. 221; Railway Co. v. Murphy, 50 Ohio St. 135, 33 N. E. 403; Kirk v. Senzig, 79 Ill. App. 251; Harrison v. Railroad Co., 79 Mich. 409, 44 N. W. 1034, 7 L. R. A. 623, 19 Am. St. Rep. 180......
  • Evansville & T.H.R. Co. v. Holcomb
    • United States
    • Indiana Court of Appeals of Indiana
    • January 2, 1894
    ...17 N. W. 870;Erickson v. Railroad Co., 41 Minn. 500, 43 N. W. 332;Railway Co. v. Lavalley, 36 Ohio St. 221;Railway Co. v. Murphy, (Ohio,) 33 N. E. 403. There [36 N.E. 44]are a number of cases in which the companies have been held not liable for accidents to car repairers, some of which are ......
  • Hamden Lodge No. 517, I.O.O.F. v. Ohio Fuel Gas Co., No. 24385.
    • United States
    • United States State Supreme Court of Ohio
    • February 7, 1934
    ...Rd. Co., 24 Ohio St. 83;Dick, Adm'x, v. I., C. & L. Rd. Co., 38 Ohio St. 389;Lake Shore & Michigan Southern Ry. Co. v. Murphy, Adm'r, 50 Ohio St. 135, 33 N. E. 403. The first intimation that the court was not entirely satisfied with these holdings occurs in the opinion of [Ohio St. 477]Judg......
  • Request a trial to view additional results
26 cases
  • Louisville & N. R. Co. v. Parker, 6 Div. 471.
    • United States
    • Supreme Court of Alabama
    • June 27, 1931
    ...S.W. 173 (notice of person on the track); Brightwell v. Lusk, 194 Mo.App. 643, 189 S.W. 413; Lake Shore & M. S. Ry. Co. v. Murphy, 50 Ohio St. 135, 33 N.E. 403; Louisville & N. R. R. Co. v. Eversole, 178 Ky. 67, 198 S.W. 548, L. R. A. 1918B, 214; Engel v. Chicago, B. & Q. R. Co.......
  • McLaine v. Head &, Dowst Co.
    • United States
    • Supreme Court of New Hampshire
    • April 1, 1902
    ...214; Railway Co. v. Triplett, 54 Ark. 289, 15 S. W. 831, 16 S. W. 266; Railway Co. v. Lavalley, 36 Ohio St. 221; Railway Co. v. Murphy, 50 Ohio St. 135, 33 N. E. 403; Kirk v. Senzig, 79 Ill. App. 251; Harrison v. Railroad Co., 79 Mich. 409, 44 N. W. 1034, 7 L. R. A. 623, 19 Am. St. Rep. 180......
  • Evansville & T.H.R. Co. v. Holcomb
    • United States
    • Indiana Court of Appeals of Indiana
    • January 2, 1894
    ...17 N. W. 870;Erickson v. Railroad Co., 41 Minn. 500, 43 N. W. 332;Railway Co. v. Lavalley, 36 Ohio St. 221;Railway Co. v. Murphy, (Ohio,) 33 N. E. 403. There [36 N.E. 44]are a number of cases in which the companies have been held not liable for accidents to car repairers, some of which are ......
  • Hamden Lodge No. 517, I.O.O.F. v. Ohio Fuel Gas Co., No. 24385.
    • United States
    • United States State Supreme Court of Ohio
    • February 7, 1934
    ...24 Ohio St. 83;Dick, Adm'x, v. I., C. & L. Rd. Co., 38 Ohio St. 389;Lake Shore & Michigan Southern Ry. Co. v. Murphy, Adm'r, 50 Ohio St. 135, 33 N. E. 403. The first intimation that the court was not entirely satisfied with these holdings occurs in the opinion of [Ohio St. 477]Judge......
  • Request a trial to view additional results

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