
    (Sixth Circuit—Lucas County, O., Circuit Court
    Jan. Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ.
    The Pennsylvania Company v. Charles Fox.
    
      Freight cars running in yard without brakeman. — Yardmaster having assigned a sufficient number of brakemen to attend to freight cars being moved about the yard, the company is not liable to other employe for being run over by freight cars moving on track without a brakeman attending them.
    Error to the Court of Common Pleas of Lucas County.
   Scribner, J.

Fox was in the employ of the Pennsylvania Company at its yards in Toledo as a “ car recorder,” his duty being to take the numbers of freight cars coming into the yard. On the -day of-a freight train came into said yard, and Fox placed himself in the center of a track parallel and next to the track on which said freight train was coming, in order to note the numbers of the freight ears as they passed him. Adjoining the track upon which Fox stood was an open space where he could have safely stood to take the numbers of the cars. As he placed himself on the track, he looked up that track to two switches substantially in line with each other, the further one being about 125 feet from him. As he glanced to the switches he saw some empty passenger cars, and perhaps a box car, being pushed by a switch-engine toward him on the track at about the place of the further switch, but as he thought he saw the cars were starting from the track upon a sidetrack at the further switch, and were not coming further toward him, he turned his back towards those empty cars, and addressed himself to noting in his book said freight car numbers, and in a few minutes thereafter he was struck and injured by said empty ears, which had not, as he supposed they had, gone in on the sidetrack, but continued to advance towards him till they struck him. In his petition against the company, Fox charged that the company was negligent in the person of the yardmaster, in not performing his duty and following a long observed custom known to Fox, and upon which he relied, of having on the front of cars moving about the yard, as these empty passenger cars were, a brakeman to stop them and warn persons to get out of the way. Though no brakeman was on the front of the cars on this occasion, the evidence showed that the yardmaster had assigned a sufficient number of competent men to move and switch the empty cars, and did not know that they were not doing their duty. The company denied that it or the yardmaster was negligent, and charged that Fox himself was guilty of negligence in standing where he did, or not keeping constant watch for his safety. On the first trial of the case a verdict and judgment were rendered for Fox, which the circuit court, by a majority opinion, affirmed. These judgments were afterwards reversed by the Supreme Court, on the ground that the court of common pleas refused to charge the jury as requested in the 8th request of the Pennsylvania Company. This request was, in substance, as follows: That if the yardmaster assigned a sufficient number of competent men to do said switching, he was not bound to go with them to see that they did' their duty, and was not negligent in omitting to do so.” The Supreme Court having reversed the judgment, with the full record before it, settles the law of the case that the yardmaster is not negligent if he assigns a sufficient number of competent men to do the work, though he does not go with them to see that they perform their duties. The evidence not showing that the yardmaster knew that these men would not do, or were not doing their duty, the necessary implication from the decision of the Supreme Court in the case reverses the judgment of the court of common pleas, and sets aside the verdict and remands the case to the court of common pleas.

E. W. Tolerton, for plaintiff in error.

I. Kent Hamilton, for defendant in error.  