McIntire Ry. Co. v. Bolton

• Decision Date: 12 May 1885
• Parties: McINTIRE RY. CO. v. BOLTON.
• Court: Ohio Supreme Court

43 Ohio St. 224

1 N.E. 333

McINTIRE RY. CO.

v.BOLTON.

Supreme Court of Ohio.

Filed May 12, 1885.

Error to the district court, Muskingum county.

On the twenty-eighth of April, 1879, the plaintiff in error was the owner of and operating a street railroad in the city of Zanesville. The railroad was constructed of a single track, with occasional side tracks, whereby cars drawn by horses, moving in opposite directions, were enabled to pass. On the day named the defendant in error was a passenger in one of the cars going northward. This car having been driven past the side track, where it should have passed the south-bound car of the plaintiff in error, it became necessary to push the north-bound car backward to the side track, so that the south-bound car could pass, and thus enable such car to proceed to its destination. At the request of the driver of the north-bound car, on which the defendant in error was a passenger, he assisted the driver to push the car backward on the side track, and while so engaged he (defendant in error) was injured by the carelessness and negligence of the driver of the south-bound car, while engaged in the business of the plaintiff in error, and without any fault or negligence of the defendant in error. For this injury the defendant in error brought his action against plaintiff in error in the court of common pleas of Muskingum county, and recovered a verdict and judgment.

On the trial, the court refused to instruct the jury that ‘if they find that the plaintiff, without the knowledge or consent of the defendant, volunteered to assist the driver of the north-bound car in the performance of his duties as such driver, the plaintiff thus volunteering to assist, whether with or without request of such driver, would, for the time being, stand in no better relation, with respect to defendant's liability, than would a servant of defendant, and would assume the risks incident to such service; and that the plaintiff, while thus assisting such driver, cannot recover damages resulting to him from the negligence of the driver he is assisting, or from the negligence of the driver of the south-bound car, provided they were persons possessing ordinary care and skill in their employment, and one not superior in authority to the other; that an employer is not liable in damages to an employe for injuries resulting to such employe from the negligence of a co-employe, not superior in authority, and to whom the employe injured did not owe obedience, if such employes possessed ordinary care and skill in their employment; and if the plaintiff volunteered to assist the driver, as before stated, and while so assisting was injured by the negligence of either of said employes, he cannot recover, for he assumes the risks incident to such undertaking, and does not stand in any better position, in respect to defendant's liability, than did the employe he was thus assisting,’-but did instruct as follows: ‘That if the plaintiff was requested by the driver of the north-bound car to assist in pushing it back, and he did so assist, and in doing so was injured by the carelessness or negligence of the driver of the north-bound car, or of the south-bound car, he can recover, if such assistance was apparently necessary. Or, if there was an actual necessity for him to assist the driver in pushing back the north-bound...