Railway Co. v. Frye

• Decision Date: 27 April 1909
• Docket Number: 10911
• Citation: 88 N.E. 642,80 Ohio St. 289
• Parties: The Cincinnati, Hamilton & Dayton Railway Company v. Frye.
• Court: Ohio Supreme Court

88 N.E. 642

80 Ohio St. 289

The Cincinnati, Hamilton & Dayton Railway Company v. Frye.

No. 10911

Supreme Court of Ohio

April 27, 1909

Action by employe against employer - Jury instructions that employer owes employe - Duty to provide him reasonably safe place to work, is erroneous - Employer not insurer of absolute safety of place of work - Province of jury as to burden of proof - Law of evidence.

1. In an action by an employe against his employer to recover damages for personal injuries, an instruction that the employer owed to his employe the duty to provide him a reasonably safe place in which to work, is erroneous, in that it imposes upon the employer a higher degree of care than the law requires or exacts of him. The employer is not an insurer or guarantor of the absolute safety of the place of work, but the limit of his obligation and duty in that behalf is to exercise reasonable and ordinary care, having due regard to the hazards of the service, to provide his employe with a safe place in which to perform his work.

2. In civil cases the jury deals only with probabilities, and the burden of proof is ordinarily carried by a preponderance of the evidence; hence, an instruction that the jury must be satisfied by a preponderance of the evidence, of the truth of a fact in issue, is misleading and erroneous.

The defendant in error, Harry Frye, brought suit in the court of common pleas of Allen county, Ohio, against the plaintiff in error, The Cincinnati, Hamilton & Dayton Railway Company, to recover damages for personal injuries sustained by him while in the employ of said company, as a result of the derailing and overturning of a locomotive engine on which he was employed and of which he was then in charge in the capacity of a locomotive engineer, by his running it into, or through an open derail, the location and existence of which derail was, as he claimed, at the time unknown to him. Several grounds of negligence on the part of the defendant railway company were alleged by plaintiff in his petition only one of which, however, is material or pertinent to the questions raised and presented by the record now before us, and that is the claim that defendant railway company was guilty of negligence in that it did not furnish the plaintiff, Harry Frye, a safe place in which to work. Plaintiff, by way of statement of his charge or claim in this behalf alleges in his petition that the derail which caused the accident "was located in a sharp curve of the track, and the defendant company negligently permitted weeds to grow and accumulate between the rails of the track and along the rails of the track about and in the near vicinity of such derail to such an extent as to obscure plaintiff's view of such derail and to make it impossible for him to see the derail as he approached it, as aforesaid, with his engine, and because of such accumulation of weeds plaintiff was unable to and did not discover or know of the existence of such derail, * * * and plaintiff had no warning or knowl- edge whatever of the location or the existence of such derail until after such accident had occurred." For answer to the foregoing averments of plaintiff's petition the railway company interposed a general denial; and by way of further and affirmative defense it pleaded "that whatever injury was occasioned to plaintiff in derailing overturning and wrecking said locomotive and the acts leading up thereto, resulted entirely and wholly from the carelessness and negligence of the plaintiff and not from any carelessness, negligence or wrong on the part of this defendant or any of its servants." To this answer the plaintiff replied denying all allegations therein contained of negligence on his part. On the issues thus made up the case was, without objection, and as though the defense of contributory negligence had been sufficiently pleaded, tried and submitted to a jury which returned a verdict in favor of the plaintiff for $10,966.67. Thereafter the plaintiff having entered a remittitur in the sum of $4,966.67 on the amount of said verdict, judgment was entered thereon by the court of common pleas in favor of the plaintiff and against the railway company for $6,000. This judgment was affirmed by the circuit court, and the railway company now prosecutes error alleging as grounds of error that the court of common pleas erred in its charge to the jury.

Mr Edward Colston; Mr. F. W. Stevens; Mr. W. D. Corn; Mr. I. R. Longsworth and Messrs. Seiders & Cunningham, for plaintiff in error.

Where inconsistent or contradictory charges are given, some correct and some incorrect, error is not cured, for it is impossible to say which instruction the jury followed. Armour & Co. v Russell, 144 F. 614, 75 C.C.A. 416; Conway v. Railway Co., 50 Ia. 465; Hughley v. Wabasha, 69 Minn. 245; Barr v. State, 45 Neb. 459.

The legal presumption is that an erroneous charge produces prejudicial error. Baldwin v. Bank, 1 Ohio St. 141; Meek v. Pennsylvania Co., 38 Ohio St. 632; Jones v. Bangs, 40 Ohio St. 139; Lowe v. Lehman, 15 Ohio St. 179; Insurance Co. v. Sherlock, 25 Ohio St. 50.

This court in a number of cases has declared that all that is required of a master is that he shall use ordinary and reasonable care and diligence to furnish a reasonably safe place for his servants to work in. Railroad Co. v. Barber, 5 Ohio St. 541; Schaal v. Heck, 17 C. C., 38; Railway Co. v. Beard, Admr., 20 C. C., 681; Speller v. Brewing Co., 16 Dec., 520; 26 Cyc., 1102, 1498; Railroad Co. v. McDade, 135 U.S. 554; Railway Co. v. Barrett, 166 U.S. 617; Hough v. Railway Co., 100 U.S. 213; Railway Co. v. O'Brien, 161 U.S. 451.

It is reversible error for courts to instruct juries that a master is obliged to furnish his servant with a reasonably safe place in which to work. Armour & Co. v. Russell, 75 C.C.A. 416, 144 F. 614; Railroad Co. v. Gloyd, 70 C.C.A. 528, 138 F. 388; Railroad Co. v. Holloway, 52 C.C.A. 260, 114 F. 458; Manufacturing Co. v. Johnson, 32 C.C.A. 309, 89 F. 677; Railroad Co. v. Myers, 63 F. 793.

The Supreme Court of Illinois in the case of Manufacturing Co. v. Ballou, 71 Ill. 417, announced that the law imposes upon the employer only the obligation to use ordinary and reasonable care and diligence in providing suitable and safe machinery. On the authority of that case the Illinois Appellate Court has consistently held it to be reversible error to instruct a jury that the master is obliged to furnish his servant a reasonably safe place in which to work. Railroad Co. v. Merckes, 36 Ill.App. 195; Railway Co. v. Hardwick, 48 Ill.App. 562; Pump & Skein Works v. Bender, 69 Ill.App. 189; Railroad Co. v. Garner, 78 Ill.App. 281; Railroad Co. v. Farrell, 79 Ill.App. 508.

It was the duty of the company to use ordinary care in providing for the use of the servant premises in safe condition, but it was not, however, an insurer. There are a number of other states in which such instructions as we are complaining of here have been held to be erroneous and prejudicial. Railroad Co. v. Mounce's Admr., 24 Ky. L. Rep., 1378; Fearon v. Mullins, 35 Mont. 232; Hughley v. Wabasha, 69 Minn. 245; Anderson v. Railroad Co., 107 Mich. 591; Railroad Co. v. Oyster, 58 Neb. 1; Conway v. Railway Co., 50 Ia. 465; Cooperage Works v. Steadman, 78 Ark. 381; Lumber Co. v. Dickerson, 94 S.W. 153; Railway Co. v. Cox, 48 Neb. 807; Railway Co. v. Bell, 75 Tex. 50; Oil Co. v. White, 32 Tex. Civ. App., 608; Railway Co. v. Beall, 43 S.W. 605; Railway Co. v. Trump, 94 S.W. 903; 97 S.W. 464; Richards v. Hayes, 12 N. Y. Misc., 44; McDonald v. Railway Co., 95 Va. 98; Railway Co. v. Gormley, 91 Tex. 393; Railway Co. v. Lyde, 57 Tex. 505; Packing Co. v. Roy, 71 Neb. 600.

The following cases state the general proposition that all the care required of a master in furnishing his servant with a safe place in which to work, or with safe appliances, is the use of ordinary care in view of the circumstances of each particular case. Railway Co. v. Mills, 108 S.W. 480; Railway Co. v. Smith, 108 S.W. Rep., 988; Cooperage Co. v. Headrick, 159 F. 680; Millen v. Bridge Co., 95 Pac. Rep., 196; Cavanaugh v. Stone Corporation, 69 A. 345; Swiercz v. Steel Co., 231 Ill. 456; Anderson v. Railway Co., 34 Mont. 181; Railway Co. v. Wells, 81 Tex. 685; Manufacturing Co. v. Kent, 105 S.W. 525.

It is well settled that, in weighing evidence in civil cases, a jury is not required to find that the person who asserts a claim or sets up a defense has made out the truth of the facts on which the claim or defense is based in order that they may render a verdict for the one on whom the burden of proof rests. Juries deal with probabilities and not necessarily with the truth. In a contest submitted to a jury for determination as to the facts a jury may not be convinced that the truth lies with one party or the other, but it would be its duty, nevertheless, to weigh the evidence and render a verdict for the party who makes his contention appear more probable than that of the other party. Supreme Conclave v. Wood, 120 Ga. 328; Rowe v. Baber, 8 So. 865.

It was prejudicial error on the part of the trial court to instruct the jury that the burden was on the defendant to satisfy them by a preponderance of the evidence that the plaintiff was guilty of contributory negligence. Railway Co. v. Linn, 77 Ohio St. 615; Lawrence v. Land Co., 144 Ala. 524; Ruff v. Jarrett, 94 Ill. 475; Sonnemann v. Mertz, 221 Ill. 362; Ball v. Marquis, 92 N.W. 691; Gooch v. Tobias, 29 Ill.App. 268; Brent v. Brent, 14 Ill.App. 256; Jordan v. State, 13 C. C., 471.

Mr. W. H. Leete and Mr. D. C. Henderson, for defendant in error.

It was unquestionably the duty of the railway company to exercise reasonable care to see that its tracks were maintained in safe condition, and we think that the trial...