
    Lake Shore and Michigan Southern Railway Co. v. William Knittal.
    
      1. The employe of a railroad company takes the ordinary hazards of the service, also such risks as arise from his own negligence, or that of such of his fellow employes, engaged, in a common service with him, as have no authority or control over him; but takes no risk arising from the negligence of the company, or of a fellow servant placed by the company in authority over him.
    2. If, however, such employe, with a full knowledge of an habitual and continued negligence of the company or his superior fellow employe in some particular matter, acquiesces therein and continues in the service of the company, without any objection or effort toward a correction of the neglect, he thereby waives his right against the company and takes the risk upon himself.
    3. "Whore it was the custom of such employes operating a railroad train to switch cars from the main track to a side track while the train is running, and to make such switches on the order of the conductor, without his personal supervision, as required by a rule of the company: Held, That an employe, who accepted service on the train subordinate to the conductor, with full knowledge of such custom, or continued in the service after acquiring such knowledge, without any objection, and acquiesced in the custom, waives all right he might have against the company arising from such mode of doing the business, or from the neglect of the conductor in not personally superintending it, as required by the rule of the company; and if he be injured in making such customai'y switch through his own neglect or that of a fellow employe on the train having no control over him, no recovery therefor can be had against the company.
    Error to the District Court of Cuyahoga county.
    ’William Knittal, the defendant in error, sued the railroad company, plaintiff in error, to recover damages he sustained in the loss of a foot, while making a switch of a car from a train on the main track to a side track of the road, while the train was running. The grounds of the recovery were the alleged negligence of the company in not furnishing a competent conductor of the train, in permitting the business to be conducted in a negligent and dangerous . manner, -and the negligence of the conductor and foreman of brakemen in not sufficiently checking the speed of the engine, when he alighted therefrom to set the-switch to the side track.
    On the trial, the jury returned a verdict in favor of Knittal for $5,000. Exceptions were taken by the company to the admission of parts of the evidence and to the charge of the court. A motion for a new trial, on the ground that the verdict was against the law and the evidence, was overruled, to which the company excepted and took a bill of exceptions, embodying all the evidence.
    Knittal had been in the service of the company two or three years, and had been brakeman on this train about six weeks, when the accident occurred. The employes on the train were a conductor, engineer, fireman, and three brakemen. Knittal was one of the brakemen, and he claims that Kinsig, another brakeman, was foreman of brakemen. The accident occurred to Knittal on his alighting from the engine, when in rapid motion, to set the switch. He fell, and his foot came under the car wheels. The testimony is voluminous, but is so far referred to in the opinion that a further statement of the case is not required.
    The district court, on error, affirmed the judgment of the common pleas, and this petition in error is prosecuted to reverse these judgments.
    
      James Mason and JE. J. JEstep, for plaintiff in error:
    The only averment upon which it can be pretended that there is a cause of action is that the conductor and foreman carelessly and negligently did not reduce the speed of the train, but it is no where averred that either one of these officers had any power or control over the speed of the train, and, in point of fact, they had not. The engineer alone had control of the speed of his engine, and, in that regard, not under the control of the conductor. The law will certainly presume no such obligation on the part of the conductor or foreman, and the averment that they carelessly neglected to do what is not averred as an obligation and -which the law does not presume to be an obligation, charges no actionable wrong.
    The case is presented of a brakeman jumping from a rapidly moving train simply because, as the petition alleges, he was ordered to do so by one whose general and proper orders it alleged he was bound to obey,but who had no power to compel, and could not compel, him to incur any apparent danger. If the averment shows an improper order, it shows at the same time one he was not bound to obey, and show's what is per se contributory negligence in obeying it. Ill. R. Co. v. Swift, 26 Ind. 476; Sanford v. Eighth avenue R. R., 23 N. Y. 343 ; 3 Ohio St. 211.
    Enittal not only voluntarily took the risk of leaping from the engine, and undertook to use his own judgment in the business, having the right to himself control the engineer as to speed, but he knew of the manner in which the business was done by the company, and waived all objections to it, and with full knowledge that the speed of the engine was not controlled by the conductor, and that he did not ride on top of the train to supervise it, he continued the employment with this knowledge. Haskins v. New York Central R. R. Co., 65 Barb. 134 ; Wright v. New York Central R. R. Co., 25 N. Y. 562 ; Barber v. Mad. R. R., 5 Ohio St. 565; Hayden v. Smithfield M. Co., 29 Conn. 548. Greenleaf v. Ill. Con. R. R. Co., 29 Iowa, 14, is the case of a brakeman killed while making a running switch; Kroy v. R. 1. & P. R. R. Co., 32 Iowa, 357, is a strong case, illustrating effect of acquiescence by employes in a custom dangerous in itself.
    
      L. R. Critchfield, for defendant in error.
   Day, J.

We do not deem it necessary to pass upon all the questions made in the case. The motion for a new trial, on the ground that the verdict is against the law and the evidence, brings the case into review on its merits.

A recovery against the company was sought in the petition chiefly on three grounds: 1. That it employed an incompetent conductor; 2. That the making of a “ running switch ” was a dangerous mode of doing business; 8. That the injury was occasioned by reason of the negligence of the conductor and the foreman of the brakeman, in not reducing the speed of the train so that a running switch could be made safely.

There is no evidence proving the incOmpetency of the conductor.

As to the dangerous mode of doing business, it is proper to say it does not appear that the company required running switches to be made. Nor is it clear that the conductor ordered a running switch to be made on the occasion in question. The evidence does show, however, that this mode of making switches had long been practiced by the employes of the company, and that the plaintiff below had full knowledge of this mode of doing business, and at all times acquiesced therein. He had on numerous occasions before performed the same service in making running switches as he attempted to do when he was injured. He never objected to or complained of that mode of switching. On the contrary, he seems to have known of this practice by the employes of the company when he entered its service, or at once thereafter voluntarily united with his fellow brakemen in the practice, which seems to have grown up and at all times been continued from their voluntary choice, rather than from the orders of their superior servants.

If it be conceded that the switching of cars from the main track to a side track of the road while the train is in motion, is a dangerous mode of doing the business, and ought to be regarded as evidence of negligence of the company or its officers ; still, all the employes who entered the service of the company with full knowledge that such was the practice, or acquired such knowledge afterward, and remained in the service without the least objection thereto, and fully acquiesced therein, must be regarded as having consented to the practice, or as having waived any objection thereto, and therefore as having taken the risk upon themselves. Mad River Railroad v. Barber, 5 Ohio St. 541, 563 ; Kroy v. The Chicago Railroad, 32 Iowa, 357 ; Hayden v. Smithville Manufacturing Co., 29 Conn. 548; Wright v. N. Y. Central R. R., 25 N. Y. 566.

As to the alleged negligence of the conductor and foreman of brakeman, it must be observed that the evideuce clearly rebuts the idea that any authorized relation of superior and subordinate existed between the brakeman on the train. Kinsig, the supposed foreman, being the senior in service as brakeman, was intrusted by the conductor with more duties than was imposed upon the others. Neither the company nor the conductor had placed him in a position of authority over his fellow brakemen : he was therefore nothing more than their fellow servant, engaged in a common employment, whose negligence would not give the others a right of action against the company. Pittsburgh Railroad v. Devinney, 17 Ohio St. 197.

The conductor, at the time of the accident, was on the platform of the rear ear, which was used as a passenger car. The train consisted of twelve ears, all of which but the rear one were freight cars. The rules of the company require conductors of freight trains to be upon the top of the train to superintend its management. It is claimed, however, that this was a mixed train, to which this rule did not apply, and the weight of the evidence would seem to support this claim. But however this may be, the conductor seldom complied with the rule, aud his habit in that respect was well known to the brakeman, and was fully acquiesced in by them all.

On the occasion in question, the plaintiff below, without objection, as usual, undertook to make the switch', knowing that the conductor was not on the top of the train ; he can not, therefore complain of the negligence of the conductor, if any there was, in this respect.

But, independent of these considerations, the running switch on the occasion in question was made in every respect as the employes had been accustomed to make them, except, perhaps, that the speed of the engine, after it was detached from the train, was faster than usual at the moment the accident occurred. The engineer had been duly notified by the brakemen that a running switch of the second car was desired. They duly signaled him to slacken the speed, to enable them- to uncouple the car. The speed was checked; the car was detached ; the conductor, on the platform of the ¿ear car, properly applied the brakp to check'the motion of the rear section of the train after it was detached, and the other brakemen were at their proper places, and neglected no part of their duties. Had the conductor been on the top of the train, nothing more could have been done by him, or any other employe of the train, than was done to conduct -the business in the usual manner, except what was done by the engineer and the injured brakeman himself. They were on the engine. Both had equal means of knowing its speed. If either, or both, were negligent, no recovery can be had. Eor the brakeman’s own negligence would defeat his recovery; and if he was without fault, and the engineer alone was negligent, in not sufficiently checking the speed of the engine for the brakeman to alight therefrom, no recovery can be had for his negligence, for he was the brakeman’s fellow-servant having no authority over him.

Neither the negligence of the engineer, nor the unexpected speed of the engine, at the instant of the accident, can be attributed to either the conductor or the alleged foreman; for both, equally with the injured brakeman, had the right to presume that the engineer would properly regulate its speed. On all such occasions he, and not the conductor, controlled' the speed of the engine, and this was well known to the injured party. This duty belonged to, and was properly committed to, the engineer. Neither the conductor nor the brakemen from the rear sections, detached and distant from the engine, could exactly determine or control its speed in the brief space of time in which the business must be done, especially at the moment of the accident. From the nature of the case, none could do that but those on the engine; and, therefore, neither the conductor nor the other employes can be charged with negligence in not checking the speed of the engine when the accident occurred.

The case at last, then, falls under the settled principle, that a servant can not recover damages of the master for an injury which results either from his own negligence or that of a fellow servant, engaged in a compion employment, having no superior authority or control over him.

The verdict, then, upon the law and the evidence, can not be sustained; The jury, doubtless, fell into the error from the concluding remark of the court in its charge to the jury, viz.:

“ If the jury find that in the instance complained of in the petition the speed of the train was so great as to make it dangerous to get off the engine, and greater than they were in the habit of having on former and similar occasions, and the plaintiff did not know the speed of the train was greater than at other times when plaintiff performed the same duty, and the plaintiff exercised ordinary care in getting off" the engine, and was without fault in this particular instance, and the company by its officers having charge of the train was negligent in thus keeping up the speed of the engine uuder the circumstances, the plaintiff is entitled to recover.”

Por want of proper qualification, this instruction was misleading in this, that it might lead the jury to find a verdict against the company upon the negligence of the engineer, who, being merely a fellow servant of the plaintiff, it was shown by the evidence, had charge and control of the speed of the engine, and whose negligence alone (except perhaps that of the plaintiff himself) occasioned the injury.

It follows that the court erred in not granting the motion of the company for a new trial, and that the judgment, for that reason, must be reversed.

Judgment accordingly.  