
    McGarvey v. The Detroit, Toledo & Ironton Railway Co.
    
      Duty of railroad, company — To equip cars with automatic couplers — Act of March ig, igoó — Company liable to employe — For worn or defective couplers — Employe does not assume risk, when— Liability of employer.
    
    1. By virtue of Section two of an act entitled: “An act to promote the safety of employes and travelers upon railroads,” etc., passed by the general assembly of Ohio, March 19, 1906 (98 O. L., 75), it is the positive duty of a railway company to equip cars being used in moving state traffic, “with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars,” and the use of such cars without the required equipment is unlawful.
    2. It 'is the duty of the railway company engaged in moving state traffic to exercise ordinary care to keep the said couplers in working order so as to accomplish the object of said enactment and promote the safety of employes engaged in causing such cars to be coupled’.
    
      3. Where an employe of a railway company, whose duty is to cause cars in use by said company in moving state traffic to be coupled, and which cars are not equipped with couplers coupling automatically by impact, as required by said Section two, is killed or injured in attempting to cause said cars to be coupled, the railway company is liable in damages for a violation of said section, and, according to Section seven of said act, the employe is not deemed to have assumed the risk occasioned by the neglect of the company; nor shall he be held to have contributed to his death or injury where the company has violated the provisions of said Section two, which violation contributed to the death or injury of such employe.
    4. Where a railway company uses cars in moving state traffic, which are equipped with couplers intended, when installed, to couple automatically by impact, but from long use or other cause, they have become defective, worn and have such lateral play that they will not couple automatically by impact, and, to effect the coupling, it became necessary for the employe to go between the cars to assist in making the same, and he is injured while so engaged because of the worn and defective couplers, he may recover for the injury so caused.
    (No. 12178
    Decided February 14, 1911.)
    Error to the Circuit Court of Lawrence county.
    The defendant below and defendant in error here, is a railroad corporation organized under the laws of the state of Michigan.' Its line of railroad extends from Ironton, Ohio, through various counties thereof and into Michigan, terminating at Detroit.
    While the company so organized was operating said line of railroad, and about the 11th day of December, 1906, the plaintiff in error, «who was employed and acting as a yard foreman for the company in its yards at the city of Ironton, was injured in attempting to couple two freight cars which were imperfectly equipped with automatic couplers. It is alleged the coupler was out of repair, worn, and loose' on the carrier irons, so that in attempting to couple onto a car of a train of thirteen being pushed in on the siding, to a standing car, he was obliged to go between •the cars and with his foot push over one draw bar, so it would meet the other and effect a coupling, and that his right leg was caught between the draw-heads and crushed ' so as to require amputation. His petition is lengthy in stating his cause of action and the facts upon Avhich he asks to recover a judgment for damages against the company.
    
      Without quoting largely from the petition, or attempting to give its substance, we adopt the( brief summary made in the brief for plaintiff in error, where it is said the negligence charged was:
    1. That the defendant negligently constructed and maintained its side-track on such an acute curve that it was necessary to have many empty cars to reach around the curve (the curve being so acute that a locomotive could not pass around it) in order to do or perform the switching of cars on this siding, the curve being so acute that it would not permit the cars to couple automatically.
    2. That the car couplers were defective, out of order, and would not couple automatically by impact.
    3. That the side-track was out of repair, ties rotten and rails uneven.
    4. That defendant caused and directed the plaintiff to work with only two brakemen as assistants, when, on account of the nature of said curve and number of the cars, there should have been three to assist him.
    The particular event is thus stated: “By reason of the facts hereinbefore set out, the draw-bars were not coming together as they should and would if the car had been in working condition, and plaintiff attempted to adjust and push over with his right foot the draw-bar on the standing car so that it would come into position to automatically couple with the car that was being headed in against it, and the draw-bar, by reason of being loose and worn, shoved over too far, and plaintiff’s foot slipped o.ff the draw-head that he had pushed, coming back, and the draw-head of the car headed in caught plaintiff’s right foot or leg and so crushed it * * * that it had to be amputated.” It is averred that the agents of the company had knowledge of the conditions complained of and that plaintiff was without such knowledge or means of knowledge.
    It is further averred that the cars being handled and which produced the injury were being used in both interstate and intrastate commerce.
    The railway company answered the petition, in which answer the corporate capacity of the company and its alleged line of railroad are admitted; that plaintiff was employed and was performing service as he alleges on a train of thirteen cars attached to an engine, which were being hándled on the siding; that plaintiff in and about making the coupling let his foot slip and the same was caught between the cars and injured as alleged. The answer admits that the cars being switched were engaged in interstate commerce, but not in intrastate commerce. All negligence alleged against it, the company denied. In a second defense, the defendant alleges that plaintiff was familiar with the curve, condition of ties and rails and all the conditions of the yards and this siding and the manner of switching cars around said curve and elsewhere, and being a man of railroad experience, was apprised of the risk to be assumed in working there, and which risk he assumed.
    A third defense reasserts some of the facts contained in the second, and pleads contributory negligence.
    
      The affirmative allegations of the answer are denied by a reply.
    A trial was had to a jury. At the close of plaintiff’s evidence, the defendant asked the court to direct a verdict in its favor, and renewed the motion at the end of all the evidence. Both motions were overruled.
    Before the argument, the court took from the consideration of the jury all averments of negligence made in the petition, except such as relate to three grounds. The court charged the jury thus: “The court has concluded to withdraw from your consideration in this case all claims of negligence made by the plaintiff against the defendant, except three. These are:
    “First. That by reason of an acute curve in the switch upon which this plaintiff, received his injury, the draw-bars would not couple automatically as it was intended they should.
    “Second. That the draw-bars on the cars to be coupled were out of repair and worked loosely on the carrier-irons, and the couplings were in such condition that they would not automatically couple.
    “Third. That the track was out of repair and uneven, the rails not properly held together; the ties rotten so that cars could not come together in proper position to couple automatically.”
    The defendant requested the- court to charge sixteen propositions, some of which were given, but refused the 5th, 6th, 8th, ,10th, 13th, 14th, 15th and 16th. Exception was taken to the refusal to give these charges, and they will be noticed in the opinion. The jury rendered a general verdict for the plaintiff, and answered several interrogatories submitted by the court.
    The general verdict was for the plaintiff in the sum of $7,500, for which .sum the court rendered judgment. The case was taken to the circuit court where the judgment of the court of common pleas was reversed.
    The plaintiff prosecutes error here to reverse the decision of the circuit court.
    
      Mr. A. R. Johnson; Mr. Dan C. Jones and Mr. William J. Meyer, for plaintiff in error.
    The law in Ohio has always been that the railway company could not contract against its own negligence, or the negligence of the person in charge or control, and before this statute took effect, April 4, 1906 (98 O. L., 75), the only defense the railway company had, was that it had used ordinary care in its equipment of couplers. Railroad Co. v: Keary, 3 Ohio St., 202; Railroad Co. v. Spangler, 44 Ohio St., 479; Coal & Mining Co. v. Admr. of Clay, 51 Ohio St., 556; State v. Railway Co., 68 Ohio St., 36; Garrison v. Railway Co., 3 O. L. R., 134.
    The legislature not only had authority under the police power of the state to pass this law, prescribing that automatic couplers coupling by impact, should be used on any car in Ohio, doing interstate business in Ohio, but had equal authority to fix upon the railroads the absolute duty to see that automatic car couplers were in such condition as they would couple automatically by impact, and likewise had authority to prescribe that the employe should not assume the risk by reason of his knowledge that the railway company had failed to comply with the law in this regard, nor that such employe, in law, should be guilty of contributory negligence, if the failure of railway company to supply automatic couplers coupling by impact, contributed in any degree to the injury of employe. Pearsall v. Railway Co., 161 U. S., 646; Phillips v. State, 77 Ohio St., 214; 23 Am. & Eng. Ency. Law (2 ed.), 729 ; 26 Cyc., 1079; 3 Elliott on Railroads, Sec. 1315; Railroad Co. v. Roberson, 61 Fed. Rep., 592; Railroad Co. v. Simpson, 131 Fed. Rep., 705; Green v. Car Co., 163 Ind., 135; Railroad Co. v. Fippo, 138 Ala., 487; Krause v. Morgan, 53 Ohio St., 26.
    This duty on the railway company is an absolute and unqualified one, and it is important to know the construction placed upon the act of Congress of March 2, 1893, as the Ohio act is taken from it. Railway Co. v. Taylor, Admx., 210 U. S., 281; Schlemmer v. Railway Co., 205 U. S., 1; Johnson v. Railway Co., 196 U. S., 1; Railway Co. v. Voelker, 129 Fed. Rep., 522; Voelker v. Railway Co., 116 Fed. Rep., 867; United States v. Railway Co., 150 Fed. Rep., 229; United States v. So. Pac. Co., 154 Fed. Rep., 897; United States v. Railway Co., 167 Fed. Rep., 696; United States v. Railroad Co., 170 Fed. Rep., 456; Railway Co. v. United States, 170 Fed. Rep., 556; United States v. Railway Co., 170 Fed. Rep., 1014; United States v. Railroad Co., 166 Fed. Rep., 352; Railway Co. v. King, 169 Fed. Rep., 372; United States v. So. Pac. Co., 169 Fed. Rep., 407; Railroad Co. v. United States, 168 Fed. Rep., 175; United 
      
      States v. Railway Co., 163 Fed. Rep., 517; United States v. Railway Co., 174 Fed. Rep., 684.
    Thus far we have shown the holdings of the United States courts upon this provision. Different supreme courts of our states have passed upon the same identical question. For instance, North Carolina: Coley v. Railroad Co., 128 N. Car., 534; Coley v. Railroad. Co., 129 N. Car., 407; Greenlee v. Railway Co., 122 N. Car., 977; Thomas v. Railroad Co., 129 N. Car., 392; Cogdell v. Railway Co., 129 N. Car., 398; Mott v. Railway Co., 131 N. Car., 234. South Carolina: Youngblood v. Railroad Co., 60 S. Car., 9; Bodie v. Railway Co., 61 S. Car., 468; Carson v. Railway Co., 68 S. Car., 55. Delaware: Railway Co. v. Winkler, 4 Pennewill, 387.
    The construction placed by the Federal courts upon the act of Congress of March 2, 1893, the words as well as the purpose and meaning of them being adopted and enacted into law by the legislature of the state of Ohio, on March 19, 1906, control the meaning of the Ohio act, if there is any doubt or uncertainty about its meaning. 2 Lewis’ Sutherland Stat. Con. (2 ed.), Sec. 404; Harrison v. Sager, 27 Mich., 476; Daniels v. Clegg, 28 Mich., 32; Greiner v. Klein, 28 Mich., 12; Attorney-General v. Brunst, 3 Wis., 787; Estate of Pike, Kimball’s Appeal, 45 Wis., 391; Cole v. Bentley, 26 Ill. App., 260; Glaubensklee v. Low, 29 Ill. App., 408; Requa v. Graham, 86 Ill. App., 566; Hudson v. King Bros., 23 Ill. App., 118; Lewis v. Lynch, 61 Ill. App., 118; Lewis v. Lynch, 61 Ill. App., 476; Commonwealth v. Harnett, 3 Gray (Mass.), 450; 
      Pratt v. Telephone Co., 141 Mass., 225; Ryalls v. Mechanics’ Mills, 150 Mass., 190; City of Laporte v. Telegraph Co., 146 Ind., 466; Nelson v. Stull, 65 Kans., 585; Pratt v. Miller, 109 Mo., 78; State v. Holmes, 115 Mich., 456; Stellwagen v. Probate Judge, 130 Mich., 166; Willis v. Trust & Banking Co., 169 U. S., 295; James v. Appel, 192 U. S., 129; State, ex rel., v. McBride, 64 Neb., 549; Everding v. McGinn, 23 Ore., 15; In re O’Connor, 21 R. I., 465; Railway Co. v. Baggage Co., 99 Va., 111; Pomeroy v. Pomeroy, 93 Wis., 262; Morgan v. State, 51 Neb., 672; Morgan v. Davenport, 60 Tex., 230; Hess v. Pegg, 7 Nevada, 23; Marqueze v. Caldwell, 48 Miss., 23; People v. Irvin, 21 Wend., 128; Railway Co. v. Mooney, 40 Fla., 17; Mining Co. v. Ore Co., 25 Mont., 41; Reymond v. Newcomb, 10 N. Mex., 151; Barnes v. Lynch, 9 Olda., 156; People v. Ritchie, 12 Utah, 180; Favorite v. Booher, 17 Ohio St., 548; Ives v. McNicoll, 59 Ohio St., 402; Paine, Kendall & Co. v. Mason, 7 Ohio St., 199; Gale v. Priddy, 66 Ohio St., 400; Brice v. Myers, 5 Ohio, 124; Reed v. Evans, 17 Ohio 128; Hilliard v. Coal Co., 41 Ohio St., 668; State v. Bovee, 6 N. P., N. S., 337; Runck v. Cloud, 8 N. P., 437.
    But independent of any construction of this act, how would the courts of Ohio construe it? They must look to the evil sought to be remedied. The remedy must appear from the language used in the statute. If the meaning of the words used is plain, definite and certain, the court simply follows their meaning. They are not subject to construction unless of a doubtful meaning. Manuel v. Manuel, 13 Ohio St., 464; Slingluff v. Weaver, 66 Ohio St., 621; State v. Borham, 72 Ohio St., 363; Beverstock v. Board of Education, 75 Ohio St., 144; Johnson v. Railway Co., 196 U. S., 1; United States v. Lacher, 134 U. S., 624; Railway Co. v. Simmons, 105 Va., 651.
    As to the construction generally, of such laws, see: United States v. Wiltberger, 5 Wheat., 76; Taylor v. United States, 3 How., 197; United States v. Hodson, 10 Wall., 395; Smythe v. Fiske, 23 Wall., 374; United States v. Stowell, 133 U. S., 12; Gray v. Bennett, 3 Metc. (Mass.), 522.
    
      Mr. L. K. Cooper, for defendant in error.
    Proof of the fact that the cars were engaged in interstate commerce being dispensed with, the railway company offered no evidence upon the proposition, it being admitted in the pleadings that the cars were engaged in interstate commerce, and the attorney for plaintiff having asked to show that the cars were rebilled from Wauseon, Ohio, to Westfield, N. Y., we presume it will not be disputed by anyone that for the purposes, of this case we may conclusively say that the cars were engaged in interstate traffic. Whether they were engaged also . in intrastate traffic is not shown by the evidence, and that fact is immaterial in any event since it' is expressly provided by the act (98 O. L., 75) that nothing therein contained “shall apply to * * * cars * * * or trains, while any of which are in actual use in interstate commerce.”
    Therefore, the Ohio safety appliance act (98 O. L., 75) is not applicable to this case, and there can be no question but that the trial court erred, in taking from the jury the question of assumption of the risk, erred in the refusal of various charges requested by the defendant and erred in the other matters hereinbefore set out.
    [Counsel for defendant in error then considers their claim that the court of common pleas erred in its refusal to give certain special charges before the argument; that the trial court erred in its general charge to the jury; that the court erred in its refusal to submit to the jury special interrogatories ; and considers the proposition of. the plaintiff in error that the assumption of the risk is not properly pleaded in the amended answer. — Reporter.]
   Price, J.

As to the manner in which plaintiff in error received his injury in the yards of the railway company at Ironton at the time "alleged, there is but little, if any, controversy. In our statement of the case is found a clear description of the situation of the cars to be coupled, and the plaintiff's relation thereto as he was about to make the coupling, as well as his conduct in attempting to make it, when his leg was caught and crushed between the draw-heads or draw-bars. The answer does not controvert the accuracy of the description given of the manner in which the plaintiff was injured, nor the extent of the injury, but it does controvert the allegations of the petition as to the negligence of the company and its responsibility for causing such injury.

After the trial court had eliminated from the casé all allegations of negligence save the three stated to the jury, found in our statement, it further said to the jury: “These are the three grounds of negligence which the court takes from -the petition in this case to be submitted to you for your determination, as claimed by the plaintiff, and you will observe that all of these three various grounds of negligence relate to the matter of the coupling of these cars.”

This instruction was proper, under the law and the evidence, and limited the consideration of the jury to the vital questions in the case, as it then was evident that it would turn on the construction and applicability of an act of our general assembly entitled: “An act to promote the safety of employees and travelers upon railroads,” etc., passed March 19, 1906. This statute will be more fully noticed later in this opinion.

On the three grounds of negligence submitted to the jury, one or all, the general verdict found for the plaintiff.

At the request of the company, the court submitted certain interrogatories to be answered by the jury in case it returned a general verdict. These and the answers thereto are as follows:

“1. Do you find from the evidence that any defect which wholly or partially caused the injury complained of in the petition, existed in the defendant's track? Ans. Yes.

“2. Did defendant, or any of its officers or agents, prior to said accident, know of such alleged defect, or could they or either of them by the exercise of ordinary care have known of the same, and if so which officer or agent ? Ans. Yes, the yard-master.

“3. From the evidence, what defect, if any, wholly or partially causing said injury, do you find existed at the time of the accident in said cars between which plaintiff claims to have been injured, or either of said cars, or their appliances?. Ans. The couplings.

“9. Do you find that the injury complained of by plaintiff in this case was caused by the combined negligence of plaintiff and defendant? Ans. No.

“10. If you find the defendant company guilty of any acts' of negligence, or omissions of duty in any regard, wholly or partially causing this accident, state fully all of said acts of negligence and omissions of duty. Ans. Defective track; defective couplings; the acute curve.

“11. Do you find that plaintiff himself was guilty of any negligence which directly contributed to his injury? Ans. No.”

These answers are consistent with the general verdict, and if the law was properly administered in the conduct of the trial and in the instructions given the jury, the pathway to recovery seems free of obstruction.

But the company claims that the evidence of plaintiff raises a presumption that he was negligent in going between the cars to make the coupling, knowing there was an automatic coupler on the two cars, and in using his foot to push one of the draw-bars so that it would come in proper place to effect the coupling, and that this presumption was not afterwards rebutted. And, further, his contributory negligence is affirmatively pleaded in the answer. It is further said in the answer, in substance, that the plaintiff was familiar with the tracks, curve and kind of cars to be handled, and was experienced in the work of coupling and uncoupling cars at that place in the yards, and assumed the risk of the service under those circumstances.

Evidence was introduced tending to support these alleged defenses, and the company desired certain jury instructions on the facts which it had presented on these subjects, which the court declined to give. Several of the instructions involved the law of contributory negligence sought to be applied in this case. The others relate to the assumption of the risk by the plaintiff in the performance of his work when injured.

We select, as samples, two requests as to contributory negligence, and one as to the assumption of the hazards, and each of which the court refused to give.

“8. The court instructs the jury that if they believe from the evidence that plaintiff was guilty of any negligence which contributed to the injury complained of, then the jury must find a verdict for the defendant, even though they may further believe that the plaintiff was injured by negligence as charged in the petition.”

“10. I charge you that if you should find-from the evidence that said cars complained of were not properly equipped with automatic couplers, or that said cars or- any or all of their appliances were defective, or that defendant was guilty of any or all the alleged acts of negligence charged in the petition, yet if the plaintiff by his own carelessness and negligence contributed to the injury which he. received, he cannot recover and your verdict must be for defendant.”

“15. Plaintiff in this case is presumed to assume the risk of injury which is incidental to the nature and character of the employment in which he is engaged, and against which the defendant could not, in the exercise of ordinary, care, have protected him, and if you find, that the injury complained of in this case was an ordinary peril of the service undertaken by plaintiff he cannot recover damages for such injury.”

Except for slight criticism of some of the language in which these requests are couched, they would be proper instructions as embracing the common law unaffected by legislation on the subject. But if the theretofore prevailing rules of the common law have been changed by the statutes of our state, relieving an injured employe from the effect of contributory negligence and assumption of the risk, the former rules will pot control.

Our general assembly has attempted to mitigate what it evidently considered the rigors and severity of such legal rules, and for that purpose passed the act already referred to in this opinion. The object of the statute, as stated in the title, was to promote the safety of employes and travelers upon railroads. See 98 O. L., 75. Among other provisions of the act is Section 2, which provides: “It shall be unlawful for any such common carrier to haul, or permit to be hauled or used on its line, any locomotive, car, tender, or similar vehicle used in moving state traffic, hot equipped with couplers coupling automatically by impact, and which can be uncoupled without the 'necessity of men going between the ends of the cars.” The next section authorizes the common carrier to refuse to receive from connecting lines or from any shipper, any car not equipped in accordance with the foregoing sections of the act. The sixth section prescribes a penalty for non-compliance with the act.

• Section seven provides, “that any employee of any such common carrier, who may be killed or injured by any locomotive, tender, car, or similar vehicle or train, in use contrary to the provisions of this act, shall not be deemed thereby to have assumed thc\ risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, tender, car, similar vehicle, or train had been brought to his knowledge; nor shall such employee be held to have contributed to his injury in any case where the carrier shall have violated any provision of this act, when such violation contributed to the death or injury of such employee.”

This statute was in force before and at the time of the injury sustained by the plaintiff, and it seems to supplant the rules of the common law as to assumption of the risk and contributory negligence by the employe of a railway company, where it is a common carrier, and it would seem that it was competent for the legislature to work this change.

It is not averred in the answer, or attempted to be proved, that plaintiff was guilty of gross and willful negligence intending to be killed or injured, and we are not called upon to consider or decide what the effect of such evidence would be, if introduced. The purpose of the statute is plain. It requires certain safety appliances to be adopted and used on all cars, etc., used in moving state traffic, and one of such appliances is an automatic coupler which will couple by the impact of the two cars to be coupled, and which can be uncoupled without the necessity of men going between the ends of the cars.

It has been suggested against the plaintiff that when he saw the coupler was out of order and not likely to work automatically by the impact, he should not have gone between the cars to assist in the coupling. But the plaintiff counters that argument or suggestion by saying it was necessary in order to complete the coupling that he push over one of the draw-bars; that he was ordered to do this switching promptly, and was in the discharge of duty when he did so. Evidently it was not a time for mature deliberation as to the best course of conduct, and we are inclined to think • that 'such cases are within the purview of the statute.

If this view of the statute is correct, the trial court did not err in refusing to charge the jury as requested by the company. To have done so would have been in the face of the statute. In the general charge, the court went to the very verge of conflict with the statute in its liberality to the contention made for the railway company. Our statute is very similar to the Federal statute on the same subject, as a comparison will show, except that the latter deals with carriers engaged in interstate commerce. The Federal statute has received judicial construction by the supreme court of the United States, in several cases, some of which are: Johnson v. Southern Pacific Co:, 196 U. S., 1; Schlemmer v. Railway Co., 205 U. S., 1; St. Louis, Iron Mountain, etc., Ry. Co. v. Taylor, Admx., 210 U. S., 281.

Federal courts inferior to the supreme court have also ruled as to the construction and scope of the same statute, as appears in Voelker v. Chicago, etc., Ry. Co., 116 Fed. Rep., 867; same parties in 129 Fed. Rep., 522; United States v. Southern Pacifc Co., 154 Fed. Rep., 897; United States v. Atchison, etc., Ry. Co., 167 Fed. Rep., 696; United States v. B. & O. Rd. Co., 170 Fed. Rep., 456; Chicago, etc., Ry. Co. v. United States, 170 Fed. Rep., 556. We may add other cases cited in brief of counsel. It is true that some of these were cases to enforce the statutory penalty, in some of which the railway company defended on the ground of having used ordinary care to comply with the act, but which was held to be no defense. The consensus of opinion to be gathered from all the cases that treat of our present question, is, that such a statute imposes a positive and absolute duty on the railway companies to furnish the appliances required, * and that neither the assumption of the risk bjr the employe, or his contributory negligence, affords a shield for the railway company, where death or injury results from a failure to comply with the statute.

In St. Louis, Iron. Mountain & Southern Ry. Co. v. Taylor, 210 U. S., 281, it was held, as one of the propositions decided, that “the Safety Appliance Act of March 2, 1893, supplants the common law rule of reasonable care on the part of the employer as to providing the appliances defined and specified therein, and imposes upon the interstate carriers an absolute duty;' and the common law rule of reasonable care is not a defense where in point of fact the cars used were not equipped with appliances complying with the standard' established by the act.” Some of the cases above cited also hold that equipping the cars with automatic couplers is not the whole duty of the carrier, but that such coupler must be kept in working order so as to couple by impact, and this is a reasonable requirement,. in order to accomplish the purposes of the statute, to secure the safety of employes.

The courts of last resort of several of the states have passed on similar statutes, and the cases are cited in the., briefs.

So we have here a case where the coupler was loose on the carriers, and instead of having play of one or two inches laterally, the testimony tends to show, that by reason of wear, the lateral play was four or five inches, and that the coupling could not be made on that acute curve without the plaintiff going between the cars to render personal assistance.

But it is said in the answer that the company, in the use of the cars where plaintiff was injured and when he was injured, was not moving state traffic but was engaged in interstate commerce, in such use of the cars, and therefore our statute does not apply to plaintiff’s case. This was a question of fact for the jury to decide, and as they were properly instructed on the subject, they have found against the company. If we look into the evidence, we find that there is evidence tending to support the finding, although it is not absolutely clear. Frank Peters, a witness for plaintiff, was called, who testified he was agent of the company at Ironton at date of the injury, and that the cars involved were loaded with cross-ties at Ironton and billed to Alexis on L. S. & M. S. railway, as billing point, but to Wauseon, Ohio, as the destination.

This being true, the cars were being used in moving state traffic and not engaged in interstate commerce.

On the facts, we believe the circuit court did not properly recognize the meaning of the enactment of pur g-eneral assembly and reversed the judgment of the court of common pleas on insufficient grounds. If the trial court was justified in refusing to give charges we have set out in this opinion, it was equally justified in refusing five, six and sixteen, for which the circuit court reversed the judgment. While this statute is in derogation of the common law, it should receive a reasonable construction to secure the safety of a large and useful class of our fellow men.

The judgment of the circuit court is reversed and that of the common pleas affirmed.

Reversed.

Spear, C. J., Davis, Siíauck, Joi-inson and Donahue, JJ., concur.  