Lake Shore & Mich. Southern Railway Co. v. Benson

• Decision Date: 16 January 1912
• Docket Number: 13087
• Citation: 85 Ohio St. 215,97 N.E. 417
• Parties: Lake Shore & Mich. Southern Railway Co. v. Benson.
• Court: Ohio Supreme Court

97 N.E. 417

85 Ohio St. 215

Lake Shore & Mich. Southern Railway Co. v. Benson.

No. 13087

Supreme Court of Ohio

January 16, 1912

A derrick or crane operated by railway company - For unloading materials in construction of dock - And not employed in business of company - While company is operating as common carrier - Machine not required by Sections 8950 and 8952 General Code - To be equipped with automatic coupler - Use of said machine in shifting cars on dock - Does not bring machine under provisions of said sections.

1. A whirley, derrick or locomotive crane built upon car trucks and equipped with a boiler and engine furnishing the power to operate the crane, and to move the machine about upon the railroad tracks in the vicinity where it is being operated by a railway company for the purpose of unloading heavy materials to be used in the construction of docks and not employed by the railway company in its business as a common carrier in moving state traffic, is not, while being so operated, a "locomotive, car, tender or similar vehicle used in moving state traffic," required by Section 8950 (3365-27b, Revised Statutes) and Section 8952 (3365-27d Revised Statutes) of the General Code to be equipped with an automatic coupler and provided with drawbars of standard height.

2. Where a railway company, as a common carrier, has deposited on tracks built upon a partly constructed dock, cars loaded with materials to he used by it in the further construction of such dock, the use of this machine to shift these loaded cars a short distance to meet the needs and convenience of the employees engaged in unloading the same, does not bring the machine, during the time it is so employed, within the provision of these sections.

On the 5th day of May, 1909, the defendant in error as administrator of the estate of John Lutyan, deceased, filed a petition in the common pleas court of Ashtabula county against the plaintiff in error, The Lake Shore & Michigan Southern Railway Company, praying damages against said defendant for negligently causing the death of his decedent, and on the 25th day of September, 1909, said plaintiff filed his amended petition in said cause averring his appointment as administrator, the corporate capacity of the defendant company, and that it was engaged in maintaining and operating a line of railway in carrying passengers and freight from the city of Buffalo, New York, and into and through the city of Ashtabula, Ohio; that in connection therewith it had a dock upon the lake front, upon which dock were certain railway tracks, and a certain machine or locomotive crane that it used for switching railroad cars over and along the tracks on said dock; that the end of said locomotive crane was of improper and unlawful construction in that the draw bar was more than six inches below the standard height of standard gauge locomotives or cars, and that the coupler was of the link and pin type, so that said locomotive crane and standard gauge cars would not couple automatically upon impact, but would make it necessary for employees to go between said locomotive crane and the cars about to be shifted; that on the 30th day of March, 1909, John Lutyan was in the employ of defendant company upon said dock under the control and direction of its foreman, John Eastman, and that his duties required him to work in, around and upon said locomotive crane; that said Lutyan was ordered and directed by said Eastman to go in between the front end of said locomotive crane and a railroad car standing upon the railroad tracks on said dock, and there to adjust a certain iron push bar between said respective draw bars, and that while Lutyan was attempting so to do, and before he could so adjust such push bar, the said foreman John Eastman, and one Olson, who was then in the employ of defendant company as an engineer in control of and operating said locomotive crane acting jointly, and without giving Lutyan any notice or warning, caused and permitted said locomotive crane to move towards said car in such manner that plaintiff's decedent was caught and crushed so that he died, and averred that the injuries so received by Lutyan, and which resulted in his death, were directly and proximately caused and contributed to by and through the gross negligence and unlawful conduct of defendant company.

First. In and about having and using said locomotive when the said draw bar was below standard height,as aforesaid.

Second. In causing and permitting said crane to be moved along said track before plaintiff's decedent had sufficient time to adjust said bar, as aforesaid;

Third. In failing and neglecting to give plaintiff's decedent any notice or warning of the aforesaid movement of said crane, as aforesaid;

Fourth. In causing and permitting said crane to run against plaintiff's decedent, as aforesaid;

Fifth. In hauling and using said locomotive crane when said coupler was of such improper construction that it would not couple automatically upon impact, as aforesaid.

The amended petition further averred that Lutyan was at the time of his death 46 years of age, earning and able to earn $1.20 per day; that he left surviving him as next of kin Bertha Lutyan, his widow, and three children, Anna, aged 14 years; John, aged 10 years, and Ellen, aged 8 years, for whose benefit the action is brought, and prayed damages in the sum of ten thousand dollars.

The defendant on the 30th of December, 1909, filed an amended answer to the amended petition admitting the appointment and qualification of the plaintiff as administrator of the estate of John Lutyan; admitting that the defendant was a railway corporation duly organized and existing under the laws of the state of Ohio and engaged in maintaining and operating a line of railway carrying pas- sengers and freight from the city of Buffalo, New York, into and through the city of Ashtabula, Ohio; that as such railway company and in connection therewith it had Dock No. 1 at Ashtabula, Ohio, upon which dock were certain railway tracks and machine; that defendant at all times maintained and operated a locomotive crane, which was then and there, among other things, used to move or unload cars on said track; further admitted the injury to Lutyan resulting in his death; admitted his age and his earning capacity and that the persons named in the amended petition were his widow and children, and denied all allegations and statements contained in the amended petition not specifically admitted. And for further answer the defendant expressly denied that it was in any way careless or negligent in the premises, but averred that the decedent was guilty of gross contributory negligence, which directly contributed to and produced the injury and death complained of in the petition. It further averred that said defendant and a fellow servant were guilty of gross contributory negligence which directly contributed to and produced the injury and death of Lutyan; that Lutyan was not at the time in the execution or performance of any duty enjoined upon him as the employe of the defendant at the time of said accident, but was a mere volunteer, and as such volunteer wholly failed and neglected to raise and properly adjust the iron bar to the coupling appliances on the car, which was the direct and proximate cause of the injuries set out in the petition.

Plaintiff filed a reply denying every allegation in the amended answer not an admission of the allegations of plaintiff's amended petition.

Upon the issues so joined the cause was tried in the common pleas court to a jury, resulting in a verdict for plaintiff in the sum of $4,100. The defendant filed a motion for a new trial, which was overruled and judgment was entered upon the verdict. Error was then prosecuted by the defendant in the circuit court of Ashtabula county, which court affirmed the judgment of the common pleas court, and this proceeding in error is now brought in this court to reverse the judgment of the common pleas and the judgment of the circuit court affirming the same.

Messrs. Hoyt, Munsell & Hall, for plaintiff in error.

Mr. D. F. Anderson, for defendant in error.

DONAHUE J.

The correct solution of the questions presented by the record in this cause depends upon whether sections 2 and 4 of an act of the general assembly of Ohio, passed March 19,1906, to promote the safety of employees and travelers upon railroads applies to the facts in this case. Section 2 of that act is now Section 8950, (3365-27b, Revised Statutes) of the General Code and reads as follows: "No such common carrier shall haul, or permit to be hauled or used on its line, a locomotive, car, tender, or similar vehicle used...