
    No. 402
    MAHER, Administratrix, v. N. Y. C. R. R. CO.
    Ohio Court of Appeals, Erie County
    No. 177.
    April 23, 1923
    NEGLIGENCE — -(1) Engineer who voluntarily as-assists in repáir of engine while off duty does not thereby enter on duties — (2) Speed of train immaterial when injury would have been caused anyway — (3) No negligence if employes are ordir narily vigilant to avoid accident.
    Error to Erie Comfifon Pleas;
    affirmed.
    Attorneys — J, -F-,. McCryatal, fdr. Maher; King; - Rayn,§ey, ..Flynn.-Pyle;, for ¡Ry. -• . ). . . .. r-
   KINKADE, J.:

Epitomized ^Opinion

Maher, a thoroughly experienced railroad engineer, was in the employ of the railroad and while off duty was requested to come to the railroad office to give certain information relative to a strike by its employes. Maher give the information requested and on his way home, stopped to assist certain other employes in the repair of a railroad engine. While so engaged he stepped on or very close to a track upon which a switch engine was approaching. The men operating the -switch engine made every effort to warn Maher of his danger, the brakeman going': to: the length of attempting to push- him from the' track, but for some reason he remained too close to the track and received an injury which resulted in' his-death. Maher’s administratrix claims that the" switch engineVvas travelling, at a speed greater than provided by ordinance and-that the railway employes Were negligent in their operation of the engine. Held-1 by Court of Appeals in affirming judgment for the . Ry: '

1. An employe of a railroad who, while off duty, voluntarily assists in the' repair of an engine does, not, because'he is so'engaged, enter upon the per).' formance of his duty. - -. .

2. When it is evident that the injury complained of would have been caused regardless of the speed: of the train, the court is justified in disregarding', evidence as to it.

■3. Where-, the .person operating a railway engine takes every precaution to .avoid injuring a.man- stand,.-ing.on the track,, the company ..cannot be said to be i negligent.  