
    Railway Company v. Murphy, Adm’r.
    
      Negligence—Duly of company to employes—Contributory negligence—Questions of law and fact—Pleading-—Damages.
    
    In an action to recover of a railway company for the death of a workman, the evidence tended to show that the deceased was sixty-two years of age at the time of the killing, and in good health; that he left a widow, one minor child, and three other children which had. reached the age of majority; that the wife resided with one of the adult sons, at Louisville, Ky.; that the deceased had a house in Sandusky, Ohio., where he lived, and to which, when working away from Sandusky, he went on Saturday nights, going thence to his work on Monday mornings.
    The evidence further tended to show that, on the day of the accident, the deceased was at work upon the track, with eighteen or twenty others, under the charge of a boss, who directed the work to be done, and the manner of doing it. The men were engaged in bolting rails together, and the duty of the deceased required him to stoop over the rail, and fasten to it the side plates by putting them on with bolts, which were fastened with nuts on the outside. To do this he had to lean over far enough to place in proper position the plates and bolts and screw up the nuts with his fingers as far as they would go, and then tighten them with a wrench. The rails on which he was working rested on the ties outside of the fixed rail of the track, but near to it? and the most of this work was done while the workman was stooping over, facing the track, with his head in such position that he could not, without interrupting the work, see any considerable distance in either direction along the track. Deceased was so stooping when struck by the pilot beam of the engine. He was near the east end of the gang of men; the boss was at the west end, some three hundred feet distant. The track was about straight east and west. The train came from the west, and was running at from twelve to fifteen miles an hour. No signal, by bell or whistle, or other warning, of its approach was given, although it had been customary to ring the bell. More or less noise was made by the handling of the loose rails, but no unusual cause existed why deceased should not hear or see the train. The others did; apparently he did not. He was in a proper position, and properly engaged at the time.
    A rule of the company required every employe to exercise the utmost caution to avoid injury to himself or to his fellows, and especially in all movements of trains, in doing which work each employe must look after and be responsible for his own safety. The rules made it the duty of the foreman to keep a copy thereof posted conspicuously in the hand-car house. But whether or not this rule was obeyed, and, if it was, whether or not the deceased had notice of the rule, the evidence did not show.
    Defendant requested the court to charge the jury that, “Upon the undisputed facts in this case it appears that the defendant Railway Company was not guilty of actionable negligence, and that the deceased was guilty of contributory negligence which brought about his death, and the verdict of the jury should be for the defendant.” Which request the court refused to give.
    
      Held: 1. The right of action given by the statute, secs. 6134, 6135, is for the benefit of the widow and next of kin. The petition states a case, and the proof tended to sustain the averments of the petition. It was for the jury to say, if they believed the evidence, what the recovery should be.
    2. It is the duty of a railway company to afford reasonable protection to its employes against dangers incident to their work-{Railway v. Lavalley, 36 Ohio St. 221, approved and followed). And if, under the circumstances of this case, a rule providing for warning was necessary, and by the exercise of reasonable care on the part of the company, that necessity could have been foreseen, it was the duty of the company to prescribe such rule. Whether it ought to have so provided or not, was a question for the jury.
    3. The evidence as to contributory negligence on the part of deceased made a case which, at least, was doubtful, and about which different minds might differ as to the proper inference to be drawn. Such a question cannot properly be determined by the court as matter of law, and should be submitted to the jury-The request was properly refused.
    (Decided March 7, 1893.)
    Error to the Circuit Court of Erie county.
    . Action below was against The Take Shore & Michigan Southern Railway Company for the killing of Anthony Murphy, whose death occurred while working for the company, as a track repairer, near Sandusky, Ohio, August 3, 1888, by being struck by the pilot beam of a locomotive drawing a freight train. The negligence alleged was the failure to give warning, and for not providing a proper rule requiring -warning to those at work on the track, of the approach of trains. The suit was brought for the benefit of the widow and children.
    The answer admitted Murphy was in the company’s employ, and struck by a locomotive pulling a freight train, and so injured that he died. It denied the other allegations of the petition, and averred that the deceased caused the injury by his own want of care.' This latter averment was denied by the reply.
    At the trial the defendant asked the court to charge the jury that “upon the undisputed facts in this case it appears that the defendant Railway Company was not guilty of actionable negligence, an'd that the deceased was guilty of contributory negligence which brought about his dea-th, and the verdict of the jury should be for the defendant.” This request the court refused to give, and to this refusal the defendant excepted.
    The defendant also excepted to the following parts of the charge as given, viz.:
    
      1. “The defendant admits that no means were especially employed by it to give signals to those who were engaged in repairing the track of approaching trains, and whether the defendant was guilty of negligence in this respect, is a question which it is for the jury to determine. It was the duty of the defendant to employ and use ordinary care to prevent injury to its employes, but railroad companies are not insurers against accidents and injuries to their employes. As a matter of law they are only required to use ordinary care and exercise ordinary precaution and prudence, and adopt ordinary agencies and means to prevent injuries to their employes. They are not bound to employ the highest degree of care to that end.”
    2. “The question of ordinary care is to be determined by the jury from a consideration of all the evidence in the case. No general rule can be given as to what in law constitutes ordinary care; it depends upon the circumstances of each particular case. * * *
    3. “Whether before the injury complained of, the defendant in this case, had adopted such rules, and whether the deceased had knowledge of such rules, and whether he was violating the same when he received the injuries which caused his death, and whether if he was so violating them, such violation contributed to the injuries, are questions of fact to be determined by the jury from the evidence.”
    4. “If.the jury should find from the evidence that the defendant is guilty of ordinary negligence and that the same resulted in the death of Anthony Murphy, and also that the deceased was without fault in the premises, then the plaintiff is entitled to such damages as the jury may deem, from the evidence and proofs, a fair and just compensation therefor, having reference only to the pecuniary injuries resulting from such death, to the widow and next of kin, not exceeding the amount claimed in the petition.”
    A verdict for $1,600 was rendered. Motion for a new trial was overruled, and judgment entered, which was affirmed by the circuit court.
    
      
      John M. Lemmon, and O. G. Getzen-Danner, for plaintiff in error.
    I. The case made by the plaintiff below did not authorize a recovery, because it does not appear affirmatively that the next of kin sustained any pecuniary loss.
    The action is provided for by Revised Statutes 6134-5. The Ohio cases bearing on the subject are: Lyons v. Railroad Co., 7 Ohio St., 336; Muhl’s Admr. v. Railroad Co., 10 Ohio St., 272; Steel’s Admr. v. Curtis et al., 28 Ohio St., 191-2; 2 Thompson on Negligence, p. 1289, par. 90; Blake v. Railway Co., 18 Q. B. 93; Grottenkemper v. Harris, 25 Ohio St., 510.
    II. Again it does not appear that the railway company, plaintiff in error, was guilty of any actionable negligence. It is alleged that its duty was to blow the whistle to warn men, or otherwise warn them. Now the record shows that no attempt was made to prove that such was the duty of the company. The allegation was emphatically denied. Could the jury presume that such was the duty of the company? I answer, no. It was alleged also that the negligence of the foreman and of the engineer brought about this action. But they were fellow-servants, so the law says, and so the court said in its charge. Whalan v. Railroad Co., 8 Ohio St., 249; Morgan v. Hudson River Ore & Iron Co., 133 N. Y., 666; The M. R. & L. E. Ry. Co.y. Barbour, 5 Ohio St., 541; P., F. W. & C. Ry. Co. v. Devinney, 17 Ohio St., 197; Kumler, Admr.,v. Railroad Co., 33 Ohio St., 151; Railroad Co. v. Fitzpatrick, 42 Ohio St., 318; Randall v. B. & O. Ry. Co., 109, U. S. 478-9; Kennedy v. The Pa. Ry. Co., 17 Atlantic Rep. 7. (A Pennsylvania case); The Pa. Ry. Co. v. Wachter, 60 Md., 395; Rogstad v. St. P., M. & M. Ry. Co., 15 Am. & Eng. Rd. cases, 648: Railway Accident Law, 342, 350.
    What is meant by ‘‘ordinary negligence?” Ordinary is not equivalent to culpable. There are no degrees of negligence in Ohio. This was misleading, for ordinary negligence may be every-day negligence of the common kind, a lack of perfection, which is not culpable. We have some doubt as to the expression in the same sentence of the charge, “and also that the deceased was without fault in the premises.” This may possibly mean by a stretch that the deceased was not negligent, I cite to the court in conclusion: McKinney on Fellow-Servants, 308-9, last part sec. 141; lb. pp. 283-4, part of sec. 129, near last part; Gormley v. O. & M. Ry. Co. 72 Ind.,31; S. C. 5 Am. & Eng. Rd. Cases, 581-2; Love-grove v. L. B. & S. C. Ry. Co., 111 C. L., 669, Gallagher v. Piper et al, 111 C. L. 669.
    
      E. B. King, for defendant in error.
    I. It is urged there is no evidence of any pecuniary loss sustained by next of kin in the killing of Anthony Murphy. The fair inference of the testimony is that he lived at home, and to the extent of his ability and his wages, supported his family. But the law is certainly against the view of my learned friend, and the cases he cites are clearly in support of this judgment. Lyons v. Ry., 7 Ohio St., 337; Muhl’s Admr. v. Ry. Co., 10 Ohio St., 272; Grotenkemper v. Harris Admr., 25 Ohio St., 570; Steel's Admr. v. Kurtz et al., 28 Ohio St., 191; Russell v. Sunbury, 37 Ohio St., 372; Davis v. Guarreieri, 45 Ohio St., 470; Quin v. Moore, 15 N. Y., 432; Tilley, Admr. v. Railway Co., 24 N. Y., 471; McMahon, Admr. v. City of New York, 33 N. Y., 642; O' Marra, Admr. v. Railway Co., 38 N. Y., 445; Etherington, Admr. v. Railroad Co., 88 N. Y., 641-4; Hourghkirk v. President and C., 92 N. Y., 220; Oldfield, Admr. v. Railway Ck, 14 N. Y., 310; Strong, Admr. v. The City of Stevens Pt., 62 Wis., 255; Hoppe, Admr. v. Ry. Co., 6 Wis., 357; Castello, Admr. v. Landwehr, 28 Wis., 523; City of Chicago v. Major, 18 Ill., 349; R. R. Co. v. Bantom, 54 Pa. St., 495; C. & A. R. Co. v. Bonfield, 8 Am. and Eng. R. R. Cases, 493. See notes pages 128, 5 Am. and Eng. Ency. of Law. Ford v. Osborne, 45 Ohio St., 1, 3.
    ' II. The next claim made is that the plaintiff in error was not guilty of negligence, and this is claimed from the evidence, and also from error in the charge of the court.
    The Railway Co. having both admitted and proved that it provided no means, the only question left was whether the defendant was guilty of the want of ordinary care in so failing to make provision for the safety of its employes, so engaged; and this is what the court told the jury. And we submit that question was fairly given to them^ as the court was bound to do.
    It has been decided a great many times upon questions of negligence, where the facts are disputed, or where the facts are not disputed but the inference drawn from them might be in doubt, that the question must be submitted to the jury. The cases which counsel say have been cited in behalf of Murphy are so referred to because the court has, in those cases, recognized the principles upon which the railroad 'company here would be liable, if at all. The Railway Company v. Levalley, 36 Ohio St., 226; Railway Company v. Henderson, 37 Ohio St., 552; Dick v. The Railroad Co., 38 Ohio St., 389; Fuller v. Jewett, 80 N. Y., 46; Gottlieb v. N. Y. R. R., 100 N. Y., 462; Ellis v. N. Y. R. R., 95 N. Y., 546; Goodrich v. R. R., 116 N. Y., 404; Clark v. R. R., 36 N. Y., 135; Black v. R. R., 108 N. Y., 640; Hathaway v. R. R., 29 Fed. Rep., 489; Lake v. Milliken, 16 Am. Rep., 456; Fairbanks v. Kerr, 70 Pa. St., 86, 91; Atkinson v. The Goodrich, etc., 60 Wis., 141, 156, 157; Schroth v. Prescott, 68 Wis., 678, 681; Vinton v. Schwab, 32 Vt., 612, 614; Sloan v. Ry. Co., 62 Iowa, 728; Schmidt v. Sinnot, 103 Ill., 166, 167; Penn. Co. v. Frana, 112 Ill., 398; Corcoran v. Railway Co., 126 N. Y., 673.
   Spear, J.

I. As to the request to charge. It is urged that the instruction asked should have been given, because:

First—It does not appear affirmatively that the next of kin sustained any pecuniary loss. The tendency of the evidence is stated in the syllabus, and need not be repeated. FVom the facts thus shown, we are asked to presume that the deceased did not contribute anything to the support of his wife or children, and hence that his life was of no value to them. We think the presumption does not follow. It was his legal, as well as moral, duty, to contribute of his wages to the support of the wife and minor child, at least, and the inference, in the absence of a showing to the contrary, is that he did his duty. . But, aside from this: A right of action is given by the statute, secs. 6134, 6135. It is for' the benefit of the widow and children. The petition states, a case under the statute. The proof tended to sustain the petition. To hold as requested, on the ground urged by counsel, would be to ignore the statute.

Second—As another reason why the proposition requested should have been given to the jury it is insisted that it does not appear by the evidence that the company was guilty of actionable negligence.

If there were no evidence tending to prove actionable negligence on the part of the company, this point is well taken; if there were evidence tending to establish that fact, then it was a question for the jury whether or not the com • pany was so guilty, and the court could not, properly, determine that question for the jury in its charge.

It was averred by plaintiff that no warning, nor signal, nor notice, was given deceased of the approach of the train. No complaint was made that there was negligence on the part of the section boss in not giving deceased warning, nor on the part of the engineer of the freight train in not giving proper signals of approach, for no rules of the company required either. But the negligence charged was against the company itself for not making reasonable provision for the safety of the deceased while engaged in his work as track repairer, in that it did not require its engineers in charge of locomotives and trains to be watchful for persons at work on the track and signal them, nor did it provide any person to watch for such trains, nor in any manner protect the workmen from danger.

Under the evidence upon this issue, (which will be found summarized in the syllabus), it would seem to be apparent that there was at least a question as to the proper inference to be drawn from the facts, and that the question was one for the jury, provided any duty rested upon the company to afford means to warn men engaged, as was the deceased at the time, of the approach of trains. Upon this we suppose the law not to be in doubt in this state. In Railway Co. v. Lavalley, 36 Ohio St. 221, a workman was injured while repairing a freight car standing on the track, by the striking of the car on which he was working by another car moving on the same track. He was working at the time under the direction of a foreman, and the injury was occasioned by failure to give him warning. The court laid down the general rule that “it is the duty of a railroad company to' make such regulations or provisions for the safety of its employes as will afford them reasonable protection against the dangers incident to the performance of their respective duties.” The .court further held that the duty to give warning rested on the foreman, who was the superior of Eavalley, and the company was liable for his neglect. It did not appear whether any special rule of the company required watchfulness on the part of the foreman or not. The principle of this case is re-asserted in Railway Co. v. Henderson, 37 Ohio St. 552, and in Dick v. Railroad Co., 38 Ohio St. 389.

That the above holding fixed negligence on the. foreman can make no difference in the application of the principle. If the case be one where the injury results from the want of reasonable provision by the company for the safety of its employes it is unimportant whether a rule of the company has been violated by its foreman, or the company has failed to make a proper rule on the subject, provided that it appears from the nature of the business in which the workman is engaged, the company, in the exercise of reasonable care, should have foreseen the necessity of such precautions. Negligence is always an inference from facts put in evidence, as contrasted with a fact which is the subject of direct proof. The proof disclosed facts calling for logical, as distinct from legal, deduction. Where that is the case the question is for the jury, and not for the court. And, whether or not, under the circumstances of the case at bar, the company should have anticipated the necessity, and exercised proper precaution, by prescribing a. rule requiring warning, was clearly a question for the jury. Of like character was the question of contributory negligence. As matter of law the court could not say that it would not be the duty of the company to provide any means to warn men in that position of approaching danger, nor that, as matter of law, the deceased was negligent because he did not interrupt his work sufficiently to protect himself from approaching trains.

2. As to the parts of the charge excepted to. Objection is taken to the court saying to the jury that defendant admits that no means were specially employed to give signals,, etc., and submitting to the jury whether in that respect the company was negligent, because the record fails to show any such admission. It is true that the record does not show a direct admission by .the company, but its wútnesses —the engineer and conductor—testified that there was no rule on the subject so far as they knew, to wffiich there was no contradiction, and the statement, as it appears in the charge, could not have prejudiced the company’s case.

Fault is found, also, with what the court said as to ordinary care, and especially with the statement that “ no general rule can be given as to what in law constitutes ordinary care.” The court added this: “A general definition of ordinary care is such care and vigilance as a person of ordinary prudence and foresight would usually exercise under the same or similar circumstances.” Taken as a whole, we see no valid objection to this part of the charge. Had the company desired a more definite instruction, it was its privilege to ask it.

The question involved in the third paragraph excepted to is elsewhere disposed of.

Objection is taken to the court’s use of the term “ordinal negligence.” Probably the term is not in common use in our practice, but it is not unknown to the books. It was, we presume, intended by the court to import the absence of ordinary care. The attempt to distinguish different degrees of negligence has been much criticized, but we fail to find that the term here given is condemned. It is observed by Mr. Justice Bradley, in Railroad v. Lockwood, 17 Wall. 357, that “if ordinary care is due, such as a prudent man would exercise in his own affairs, failure to bestow that amount of care is called ordinary negligence.” See, also, Wharton on Negligence, sections 44, 45, 46; Sherman & Redfield, section 49, and Deering, section 11. If, in the opinion of counsel, the term was likely to be misunderstood by the jury, it was the duty of counsel to call the court’s attention directly tp it.

Objection is also taken to the charge as to the rule of damages. To the extent which the charge goes it is in accord with the statute, and is correct. Had more specific instructions been thought necessary they should have been requested.

The sufficiency of the evidence has been pássed upon by the court below. This court is not required to consider that. We cannot say, from the record, that the trial court, erred, and the judgment will be

Affirmed..  