Interurban Ry. & Term. Co. v. Treuheit

19 Ohio C.C. Dec. 407

• Court: Hamilton Circuit Court
• Decided: December 29, 1906
• Status: Published

Opinion

GIFFEN, J.

The defendant below requested the court to give to the jury before argument the following special instructions, which is a correct proposition of law applicable to the evidence in the case, and its refusal was error:

‘ ‘ If you should find from the evidence that the plaintiff, when going up the track along three-mile road, by exercising ordinary care and prudence, ought to have discovered the presence of the other car in time to have stopped his own car without a collision, then I charge you that his failure to do so would be contributory negligence on his part, and he could not recover a verdict in this case against the defendant.”

The general charge contained this proposition:

“The law further says that when a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present; the question in such case is not what a person of ordinary care and prudence would do under ordinary circumstances, but what would he do or ought reasonably be expected to do in the presence of such existing danger.”

The evidence does not present a situation where the plaintiff was required to choose suddenly between different courses of action. The plaintiff himself testifies that ‘ ‘ The instant I saw the other car approaching, why I threw the current off and applied my brakes — the only thing I could have done,” and pleads substantially the same facts in his petition. The charge was, therefore, misleading and erroneous.

The court gave to the jury the following special instruction:

“If you find from the evidence that the defendants, the Interurban Railway & Terminal Company, placed the plaintiff asvmotorman under their employ, under the control of the conductor of the car, in regard to the starting, stopping and general management of the car between terminal stations, the defendant is liable to- the motorman for an injury received without plaintiff’s fault, occasioned by the negligence of the conductor, while they are both engaged in their respective employment. ’ ’

The liability is here made broader than the finding would warrant. It should be limited to the negligence of the conductor while both are engaged in their respective employment between terminal stations.

Whether the car barn was a terminal station, within the meaning of the company’s rule, to which the instruction applied was a question for the jury under proper instructions from the court.

There was testimony tending to prove a custom or rule of the company, that, on the arrival of a car at the car barn the conductor was required to obtain orders from the train dispatcher, and verbally communicate them to the motorman before proceeding. If there was such a rule or custom, and was understood by the plaintiff motorman, it was his duty to wait for such orders, and not to proceed upon a mere bell signal from the conductor. It is, however, very improbable that the rule was so strict as to require a transmission of the orders verbally by the conductor to the motorman, as the latter would have no more assurance that the orders came from the train dispatcher than he would if transmitted by bell signal, unless he verified them by going himself to the train dispatcher; but there is no pretense that the rule required him to do so.

We are of opinion that the instruction was erroneous. There was no error in refusing to give special instruction No. 8 requested by defendant, as it merely states a self-evident truth.

We are of opinion, further, that the verdict is not sustained by sufficient evidence; but in view of the conflict in the testimony, we are not prepared to say that the defendant was manifestly free from negligence, nor that the plaintiff was manifestly guilty of contributory negligence.

The judgment will be reversed for error in the instructions above specified and the cause remanded for a new trial.

Jelke and Swing, JJ., concur.