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Opinion, per JOHNSON, J.

its favor, and overruling the motion of the defendant for a new trial in that the verdict was contrary to law and in rendering judgment against this plaintiff in error."

The court of appeals then proceeded to render final judgment in favor of the railroad company. This proceeding is brought to reverse that judg

ment.

Mr. D. A. Montani; Mr. R. J. Nicholson and Mr. E. H. Moore, for plaintiff in error.

Messrs. Wilson, Hahn & Wilson, for defendant in error.

JOHNSON, J. The material allegations in the petition as to negligence and wrongdoing by the defendant are put in issue by its answer, which contained the further defenses of contributory negligence and assumption of risk by the plaintiff. There were presented the questions whether the foreman of the defendant did, within the scope of his authority, order the plaintiff to ride on the train in question in the position and in the manner claimed by him, and whether the giving of such an order, under the circumstances, if given, amounted to a failure to exercise ordinary care for the plaintiff's safety. Was the relationship between the parties such that the plaintiff was justified in obeying such an order of the foreman if given within the scope of his authority?

Testimony was introduced by each of the contestants concerning these questions. The court of appeals having reversed the judgment below for the

Opinion, per JOHNSON, J.

reason that the trial court should have directed a verdict in favor of the defendant at the close of all the evidence, this court in this proceeding in error must view the evidence in the light most favorable to the contentions of plaintiff. It is shown that the foreman ordered the plaintiff to go with him from the roundhouse to the depot to get some supplies, and that when they had gone some distance an engine and some cars were passing along the track toward the depot and the foreman ordered him to jump on the moving train and to take the position between the cars, which is described in the petition. This the plaintiff did after the foreman had first gotten on. After it had gone a short distance the train suddenly stopped, and as the cars came together plaintiff was injured.

It is conceded that the foreman had the authority to direct the plaintiff in and about his work and in the locality stated.

It was a part of the duty of the foreman to procure the supplies referred to, and it was the duty of the plaintiff to accompany him to the depot for that purpose when ordered by the foreman to do so. In order to facilitate this usual undertaking, the foreman had at other times mounted passing locomotives or cuts of cars and directed the employes who were engaged with him to accompany him in that way, which they did, among them the plaintiff. The plaintiff was about 22 years old and claims that he was without experience and was unaware of the dangers under the circumstances, and relied on the instruction and protection of the foreman to protect

Opinion, per JOHNSON, J.

and warn him, but that no instruction or warning was given.

It is insisted that it is shown by the evidence that the train upon which the plaintiff was injured was not the train of the defendant, but that of the Erie Railroad Company; that the plaintiff at the time of the injury was a trespasser upon the train and that this fact defeats his right to recover in this action.

The tracks of the New York Central run past the roundhouse down to the station, east of these tracks and parallel with them are the tracks of the Erie company, and on occasions when it was necessary for the foreman and the laborers to go from the roundhouse to the station, which was a considerable distance, they sometimes rode upon a New York Central engine, or cut of cars, and had on several occasions ridden on an Erie engine or cars, on the order of the foreman.

The foreman testified that in doing this it was not necessary for him to talk with any of his superiors. before so doing, but that he would inform the engineer as to the point where he wished to get off. He stated that "it was up to him to use his judgment."

It is shown by the record that the Pittsburgh & Lake Erie is part of the New York Central system and is under the same management. The plaintiff does not concede that it was an Erie train upon which he received his injuries and the testimony that it was is not clear. However, it is conceded that the plaintiff did not know that it was an Erie train upon which he was riding. Assuming that it was, a situation is presented in which the plaintiff, in obedience to instructions from his superior, who

Opinion, per JOHNSON, J.

was acting within the scope of his authority, is instructed to do the thing that was done. The plaintiff under such circumstances has a right to assume that his employer's foreman was proceeding in a usual and safe manner and that in order to expedite the defendant's business he was doing a thing that was natural and proper and consistent with the nature of the business of the defendant. But it is insisted that when the plaintiff mounted the moving train, he was in the commission of an offense against the laws of the state, which directly contributed to his accident, and that, therefore, he cannot predicate an action against his employer on the theory that he was ordered to do that act by a superior servant. The statute relied on is Section 12543, General Code, which reads as follows: "Whoever climbs, jumps, steps, stands upon, clings or attaches himself to a locomotive, engine or car upon the track of a railroad, unless in compliance with law or by permission under the lawful rules and regulations of the corporation managing such railroad, shall be fined not more than twenty-five dollars."

It will be observed that this is not an unconditional prohibition against climbing upon the engine or car. On the other hand, it expressly recognizes that one might properly climb upon an engine or car "by permission under the lawful rules and regulations of the corporation managing such railroad." Obviously it contemplated the very thing that the foreman and the plaintiff did on this occasion, if done by permission or under the rules and regulations of the company. If the plaintiff stepped upon

Opinion, per JOHNSON, J.

the train in obedience to the order of his superior, in the prosecution of defendant's business, the defendant cannot now be heard to say that the train which the foreman instructed the plaintiff to climb upon was not its train, because manifestly the plaintiff had a right to presume that the conditions laid down in the statute had been fully complied with by the foreman and that in climbing on the train and ordering plaintiff to accompany him the foreman was acting "by permission under the lawful rules and regulations of the corporation managing such railroad."

In Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St., 298, it is said, at page 309: "The clear result of the best considered cases is, that where an order is given a servant by his superior to do something within his employment, apparently dangerous, and, in obeying, is injured from the culpable fault of the master, he may recover, unless obedience to the order involved such obvious danger, that no man of ordinary prudence would have obeyed it; and this is a question of fact for the jury to determine under proper instructions, and not of law for the court." Many cases are cited by this court in support of that proposition.

In Greenleaf, Admr., v. Ill. Central Rd. Co., 29 Iowa, 14, at page 47, it is said: "Though decedent knew of the defective car, if he acted under instructions and directions of a superior, the action would by no means thereby be defeated. Under such circumstances, compelled as he necessarily would be to act with promptness and dispatch, it would be most unreasonable to demand of him the thought,

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