
    Railway Co. v. Henderson.
    1. Where the superintendent of a railroad company has made an order as to the management of a particular train, which order will be reasonable or unreasonable according to the circumstances under which it is to be enforced, the question whether in any particular case such order is to be deemed reasonable or unreasonable is a question of mixed law and fact, to be determined by the jury under proper instructions.
    2. Where an action is brought against a railroad company by one of its employees to recover damages for personal injuries sustained by the enforcement of an order made by the superintendent of the company, as to the management of a particular train, which order was unreasonable, and the enforcement of the same was dangerous to such employee, the fact that the negligence of a fellow-servant of the injured person, while executing such order, contributed in producing the injury, affords no defense to the action.
    Error to the District Court of Harrison County.
    Henderson brought suit in the Court of Common Pleas of Harrison county against the Pittsburgh, Cincinnati and St. Louis Railway Company. He was a laborer in the 'employ of the company upon a construction train which was on the main track of the railroad, in a deep rock cut, upon a heavy curve in the road. While he and the other laborers were at work loading the train with gravel, a freight train which was on its regular time was run into the construction train without warning of any sort, and by the wreck which resulted from the collision, Henderson was driven . against the rocks, two or three of his ribs were broken, his shoulder was dislocated, and he was permanently injured. The action was brought to recover damages for the injuries, and in the court of common pleas there was a verdict and judgment in his favor for $3,000, which judgment was affirmed in the district court, and this petition in error was filed to reverse the origiual judgment as well as the judgment of affirmance. The record contains all the evidence.
    Construction trains have no place on the schedule or timetable, and by the printed rules of the company it is required that they shall be kept oat of the way of all regular trains, freight as well as passenger, clearing their time at least ten minutes, and it is the duty of the conductor of the construction train to observe the time of all trains and-obey the rules. This rule, however, may be suspended as to freight trains by special order of the superintendent of the railroad company, whenever he sees fit to do so, in which case it is the duty of the conductor of the construction train, where such train is being loaded on the main track, to keep the train in its place and send a man with a proper signal to notify approaching freight trains.
    In this instance the superintendent'had made such special order, and the conductor of the construction train, keeping his train on. the track, had sent a flagman to notify the approaching freight train; but the flagman performed his duty so negligently and improperly that the engineer of the freight train understood his acts as an order to go ahead and not stop. The engineer says the flagman stood several yards from the railroad track, holding the flag down at his side with one hand and making motion with the other as for a forward movement. In this way the injury was occasioned, without any negligence on -the part of the plaintiff. It would have taken six minutes to move the construction train to a side track from the place where it stood on the main track.
    Barrett was superintendent of the company. He testified : ££ There are general printed rules for all trains, made in order to promote the safety of persons and property. I establish these printed rules. I am the superior officer for that purpose on this division. I give special orders and private instructions, as I think necessary, to annul or disregard the general rules. . . . They áre not printed. . . . Construction trains cannot occupy the main track without special instructions. It is the duty of the conductors of construction trains to protect their trains. I gave special order, which, annulled the general rule as to construction trains, allowing them to stand on the track until the arrival of the freight trains, by sending back a flagman to notify approaching trains. I give special orders to construction trains where to work, and direct them -by special orders from time to time, by telegram or otherwise.”
    Lowen was boss of the laborers employed on the construction train. He hired and discharged the men and regulated the time and manner of working. He had authority to require that' the train should be moved, as he might direct, with reference to the work, but it was no part of his duty to observe the time of approaching trains, that matter being confided exclusively to the conductor. He was in the caboose until the freight train was within a few feet of the construction train, and barely escaped serious injury, but several persons beside Henderson were injured.
    In the amended petition the negligence of the superintendent, “ boss,” and' the conductor of the construction train, is stated, and the answer is a denial.
    
      J. Dunbar, for plaintiff in error :
    The duty implied as incident to the employment, and the question whether the special order was reasonable, were questions of law. 5 Ohio St. 567; 43 Ill. 421. The exception to the charge was sufficient. 10 Ohio St. 226; 29 Ohio St. 452; 32 Ohio St. 415.
    
      J. M. Estep, for defendant in error:
    Negligence is for the jury. 8 Ohio St. 580; 13 Ohio St. 66; 23 Ohio St. 10; 24 Ohio St. 639, 668 ; 28 Ohio St. 23; 31 Ohio St. 480; 32 Ohio St. 66; 35 N. Y. 10 ; 58 N. Y. 455 ; 77 N. Y. 72 ; Shearman and R. on Neg. § 11. Rules must be reasonable. Shearman & R. on Neg. § 93; 36 Ohio St. 226. Negligence complained of is negligence of company. Shearman & R. on Neg. § 89; 33 Ohio St. 468; 73 N. Y. 40; 81 N. Y. 206 ; 42 Md. 117, 136; 6 Bing. 716. Employee takes no risk of negligence of company. Ib.; 3 Ohio St. 201; 31 Ohio St. 287; 17 Ohio St. 197; 36 Ohio St. 221; Shearman & R. on Neg. §§ 5, 10, 89; 73 N. Y. 40 ; 53 N. Y. 553. Exceptions to charge in gross and hence insufficient. 25 Ohio St. 584; 30 Ohio St. 105; 32 Ohio St. 77; 21 Wall. 158.
   Okey, O. J.

Where a servant sustains injury by the negligence of his master, the master is liable in an action by the servant for damages. A breach of duty by the master is not one of the risks which one assumes on entering upon the employment of another. This breach of duty may consist in employing other servants who are incompetent, in providing unsafe machinery and structures, in failing to notify the servant of peculiar dangers known to himself but not to the servant, or in needlessly placing the servant in a place of danger.

As corporations act only through agents, it sometimes becomes important to determine what persons stand in such relation to it as that their negligence shall be deemed the negligence of the corporation, or, as sometimes expressed, who is to be regarded as merely a servant of the corporation, and who is in legal effect master. Upon this subject the cases are by no means in harmony (Pierce on Rail. ed. of 1881, 367; 2 Thompson on Neg. ch. 20; 11 Reporter, 42, 207, 591; 21 Am. L. Reg. 76), but it is unnecessary to enter upon any extended examination of them. No doubt can be entertained that one standing in the relation to the company sustained by Barrett, being the superintendent of the company, and clothed with power, at his own discretion, to make and suspend rules to regulate the running of all the trains on the road, is to be regarded, in a case of this sort, as in legal effect the master. And where one so in legal effect master, makes special order with respect to the management of a particular train, which is, under the circumstances, unreasonable, and by the execution of such order, a servant of the corporation, himself without fault, is injured, it will be no answer to the action of the injured party against the corporation to say, that the immediate cause. of the injury was the negligence of a fellow-servant of such injured party in the execution of the unreasonable order. Chicago, &c. R. Co. v. McLallen, 84 Ill. 109 ; Chicago, &c. R. Co. v. Moranda, 93 Ill. 302; Hough v. Railway Co., 100 U. S. 213; Fuller v. Jewett, 80 N. Y. 46; Smith v. Oxford Iron Co., 42 N. J. L. 467; Ohio & M. R. Co. v. Collarn, 73 Ind. 261; Patterson v. Pittsburgh, &c. R. Co., 76 Pa. St. 389; Cumberland, &c. R. Co. v. State, 44 Md. 283 ; Ford v. Fitchburg, &c. R. Co., 110 Mass. 240; Berea Stone Co. v. Kraft, 31 Ohio St. 287; Lake Shore, &c. R. Co. v. Lavalley, 36 Ohio St. 221.

Whether a rule of a railroad company is or is not a reasonable rule, is in many cases a question of law; but in this case it cannot be affirmed as matter of law that the special order made by superintendent Barrett was reasonable. On the contrary, whether such order was reasonable or unreasonable was a question of mixed law and fact proper for the determination of the jury, in view of the circumstances under which the order was to be executed, and upon proper instructions as to the law. The jury found that the order was unreasonable, under the circumstances, and we are not prepared to say that the finding was wrong.

Objection is made that the court permitted the petition to be amended after the evidence was closed, and also permitted the jury, after the verdict was announced, to retire for the purpose of correcting it. Rut these matters rested in the discretion of the court, which seems to have been exercised in furtherance of justice. And as to the request to charge and the charge given to the jury, the exception was general and not specific, and, looking to the whole record, we cannot say the action of the court was so prejudicial to the company, in any respect, as to afford ground of reversal.

Judgment affirmed.  