
    Tuck v. Chapple. Tuck v. Chapple.
    
      Negligence — Fellow servant’s negligence not a defense — Section 6244, General Code — Employees instructions for performing duty “peremptory,” when — Question for jury— Prudence and exercising care in obeying apparently dangerous order.
    
    (Nos. 19025 and 19026
    Decided June 8, 1926.)
    Error to the Court of Appeals of Cuyahoga county.
    In the common pleas court, Chapple brought an action against the Tucks, as partners, for damages resulting from the alleged negligence of the defendants. The plaintiff was one of their employes and engaged at the time of his injuries in hauling coal for the defendants. One Gresham was also employed by the defendants, and both of such employes were working for the Tucks at the time of the accident. The petition alleged that the defendants had “directed an employe to fasten a large heavy wagon to the rear of the wagon plaintiff was driving, to be hauled down West Third street hill in Cleveland, * * * without a driver or any one to handle the brakes in the second wagon;” that the directions so given were dangerous to the life and limb of the plaintiff, and that defedants were negligent in permitting their agent to hitch said wagon to the wagon of plaintiff, and in failing to provide brakes therefor and to place another in charge of the rear wagon to hold it in check; that because of said directions and acts of negligence the great weight of the rear wagon overthrew the first or leading wagon, causing the injuries which plaintiff sustained.
    In the trial court the verdict and judgment were in favor of the plaintiff. The Court of Appeals affirmed the judgment of the trial court, whereupon the Tucks prosecuted error to this court.
    The testimony disclosed that Chappie and Gresham were fellow employes engaged in the service of the defendants; that on the day of the accident directions were given to Gresham, which were to be communicated to Chappie, directing these employes to go to a certain place for the purpose of getting an empty coal wagon and taking it to a certain yard; that in order to do so it was necessary to proceed upon a descending grade. These directions of the defendants were communicated to Chappie by Gresham. One of the defendants ordered Gresham to “tie this wagon to George’s (Chappie’s) wagon, George’s wagon has got a chain on and your wagon hasn’t got no chain on it, and George take it down to the coal yard.”
    Chappie was on the lead wagon and did not see the method by which the empty wagon was attached thereto, but objected to carrying it down the grade because it was dangerous. Gresham, the fellow employe, who attached the chain to the front wagon, responded: “Well, I got it tied good; it will go. I said Bob (Tuck) said to take and carry it over there.” Gresham also testified that when Chappie had backed his wagon up to the tongue of the empty wagon, he said to Chappie. “I will fasten your wagon.” To this Chappie responded: “I don’t want to carry this wagon; there ain’t no brakes; there ain’t nobody riding on it.” To which Gresham answered: “It is Bob’s (Tuck’s) orders; he told me to tell you to carry it to the coal yard.” That then Chappie said: “I will carry it; very well.’’
    The empty wagon which Gresham attached by means of a chain, under the orders of the employer, was much heavier than the lead wagon, contained no brakes, and was not provided with some one in charge while descending the grade. The proof tended to show that the cause of the accident was the insecure method by which Gresham had tied the pole of the rear empty wagon to the wagon which Chappie was driving, in consequence of which the heavier weight of the rear wagon, going down the descending grade, caused the chain to become unfastened and the front wagon upon which Chappie was seated to be overturned. At least there was sufficient evidence touching those facts to sustain the verdict of the jury-
    
      Mr. Harrison W. Eiving, Mr. Louis Barnes, and Messrs. Payer, Winch, Minshall & Karch, for plaintiffs in error.
    
      Mr. Cornelius Maloney, for defendant in error.
   By the Court.

Plaintiffs in error do not seriously contend that the charge of the court was erroneous, nor that Gresham, whose negligence may have caused the injury to the plaintiff, was not a fellow employe of the latter. The record discloses evidence from which the jury might determine that the cause of the accident was the act of the fellow servant, Gresham, in fastening the chain insecurely to the pole of the rear wagon in obedience to the directions given by the employer. The employer and employes knew that this empty wagon was unequipped with brakes, and should have known that, on account of its heavier weight, the process of taking it down a descending grade would involve danger to the driver of the front wagon.

The contention of plaintiffs in error, as stated in counsel’s brief, is that under the evidence produced on the trial the cause “was improperly submitted to the jury on the theory that some immediate or peremptory order was given by the master to John Gresham, a fellow servant; whereas, no such order is shown in the record.”

The only question presented and argued is whether the order and directions of the employers, disclosed in the above statement of facts, were “immediate or peremptory.” Section 6244, General Code, reads:

“That in all such actions the negligence of a fellow servant of the employe shall not be a defense where the injury or death was in any way caused or contributed to by * * * the negligent act of any fellow servant done in obedience to the immediate or peremptory instructions or orders given by the employer, or any person who has authority to direct the doing of said act.”

It is conceded that Gresham was a fellow employe and that his negligent act, if found to be so, was done in obedience to the order of- Tuck, who ordered Gresham to tie the empty wagon, by means of a chain, to the lead wagon. Compliance by a servant with the orders of his employer does not deprive him of the right of recovery because of the fact that such, compliance was apparently dangerous, if a person of ordinary prudence, and using ordinary care under the circumstances, would have obeyed such order; in such a case the question is one of fact for the determination of the jury, and the trial court so charged in accordance with the rule announced in Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St., 298, 55 N. E., 998.

Chappie himself testified that before that time he had frequently taken two wagons down the same hill without accident. The directions given in the instant case are distinguishable from the communicated instructions reported in the two following cases: Northern Ohio Ry. Co. v. Rigby, 69 Ohio St., 184, 68 N. E., 1046, and Cincinnati Gas & Elec. Co. v. Johnston, 76 Ohio St., 119, 81 N. E., 155. Here under the instructions given by the employer, no discretion as to the method of taking the empty wagon was left to these employes. The employer had stipulated the precise method to be employed; they were ordered to take a chain furnished by the employer and were explicitly directed to tie the lead wagon to the pole of the empty wagon by means of the chain, and in carrying out the explicit directions of the employer the plaintiff was injured by what the jury must have found to be a negligent act of a fellow servant. The instructions given by the employer in the present case were peremptory, and under Section 6244, General Code, above quoted, the negligence of a fellow servant is not a defense.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Jones, Matthias, Day and Allen, JJ., concur.  