
    NEGLIGENCE — VERDICTS—REMITTITUR.
    [Lucas Circuit Court,
    March 3, 1900.]
    Haynes, Parker, and Hull, JJ.
    Elmer L. Carl v. Pierce, Rec. T. St. L. & K. C. R. R. Co.
    1. Negligence — Evidence oe Custom—
    In an action for personal injuries resulting from one freight train running into another, testimony to snow that it was customary when the approaching train arrived at a point and saw cars on a side track, with a red light displayed, to stop before proceeding, is admissible, when applicable to the facts in the case, as bearing upon the question of negligence of the arriving train, although there may not have been a rule of the company requiring it.
    
      % Railroads — Signals—Rights to Rely on Their Observance.
    The conductor of a railroad freight train, in pursuance of his duty, in making up a train at a way station, when the side track is not long enough to contain all the cars and some of them must be placed temporarily on the main track, after placing the proper signals in the proper places, and notifying the train despatcherand conforming to the rules of the company in such case provided, has a right to rely upon the fact that an approaching train will be notified and will observe the signals and obey the rules. And such conductor, under the circumstances stated, has a right to proceed with his duties of making up the train, although, should his signals be disregarded by an approaching train, he will be placed in danger.
    H» Rule Requiring Conductor to Send Man Back to Watch.
    The rule requiring the conductor of a freight train when it has come to a stand still, to send a man back and keep him there to inform him of incoming trains is not applicable when the train is in the yard at a station.
    •4. Abatement oe Verdict — Remittitur.
    A trial court may require a verdict to be abated on the ground that it is excessive, although it is not excessive to a degree which necessarily imp'lies that it was returned under the influence of passion or prejudice. Pendleton St. Ry. Co. v. Rahmann, 22 Ohio St., 446, followed.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

This case has occupied our attention a considerable time; the record •was so very long, it necessarily took a great deal of time to examine the •case and discuss the various questions which were raised in it. It is impossible now at this late hour, to go into a detailed statement of the -case, and perhaps it would not be profitable. The questions, after all, when you get down to the ultimate questions, are not very numerous.

The plaintiff was the conductor of a freight train on the Clover Leaf »oad, which was proceeding west on a certain day in July — which was a way freight train as I understand ; but, at any rate, he was called upon to ■do work at each station, in receiving and delivering cars, and he had proceeded on his way until he arrived at the town of Kokomo, in the ■state of Indiana, where he had work to do. In performing his work he had taken cars off of the main track and put them on a side' track, to go into the train, and in performing the work he was necessarily detained there for a couple of hours, and about nine o’clock he was still engaged in his work, and, in the prosecution of his work, attempted to cross the track in front of some cars which were standing upon the main track, for the purpose of throwing a switch, when he was suddenly run over by his own train, and two cars passed over him, and while he was under the third car he was caught in some manner and thrown over so that his foot and ankle came under the wheels of the car and were injured so that it became necessary to amputate his leg. He was a young man, and it was claimed that he was earning a good salary. ' He was thus injured by a train that was following his, running into the'cars he had thus placed on the main track. He had notice that this train was following his and from time to time, through the train despatcher, knew that, it would pass his train at this point. The train that he had was a long train, consisting of sixty-one cars, and the town of Kokomo seems to extend over quite a bit of territory, and at the eastern extremity of the town there is a. very long switch, called by the railroad men a passing switch, and plaintiff had placed on that switch a large proportion of his cars and had sent out one of his brakemen to place upon the track, at the proper distances, torpedoes, which the brakeman did. The brakeman then was ordered to return and did come back to the train and remained in the caboose attached to that portion of the train standing on the side track and placed on the rear of the caboose the proper red light, which denoted danger, and denoted that there was a train on the side track which possibly might not clear the main track.

Testimony was offered to show that it was customary when the apprachiug train arrived at that point and saw these cars upon the side track with the red .light displayed, to stop before proceeding; and it is very earnestly contended that evidence which was received of that custom or practice was improperly received; that the rules of the company should govern the action of the train and that the evidence should not have been received. We are of the opinion that the testimony was .rightfully received; for one question that was being raised was, whether that freight train which was coming, this extra, was using due and proper care.

Another question is as to the contributory negligence of the plaintiff in this case. Thi^raises the question as to what he had a right to rely upon in regard to the action of this following train. The persons in charge of the approaching train were bound to use ordinary care in approaching trains and in .coming into the vicinity of this train ; were bound to observe the torpedoes. They heard the torpedoes, they admit that; they saw the train; they admit that; and now the question as to what was the ordinary custom, the customary practice of a train in that condition, or the passing of a train of that kind, it seems to us was a very proper question to be made before the jury. It is what the trainmen do under those circumstances in the ordinary course of their business, the ordinary management of their trains, in the exercise of prudence in passing a point of that kind; and the custom may throw a great light upon the question as to the negligence of the approaching train, and more espe daily it throws light upon the question as to what the plaintiff had a righk to rely upon in regard to that approaching train.

Now, that train passed this point without stopping and came on down to a place where the Nickel-Plate crossed the railway. The train had to stop there, for the opening a gate. The train from there proceeded to the station. The semaphore at the station showed a red light, which showed that under the rules of the company the train should stop there and receive orders. The train slackened down. The conductor was traon the locomotive and he jumped off, ran to the operator, received Ms^oraters and got onto his train and gave the “High Ball” signal, as they call it, to go ahead and get out of town, and the engineer proceeded to get out of town, ran about 2200 feet until he came to the cars of plaintiff’s train and ran into them. At the time the conductor received this notice from the operator, he made inqiiiry in regard to plaintiff’s train, this local train, as they call it, and was told that the conductor of this train was down ahead of him at work and to look out for him. So that the conductor of the following train at the time he signalled his train to go ahead, had ample notice of the whereabouts of the plaintiffs train and was warned to protect him, and that was in full time to enable him to do so, but he failed to do so, but sent the train ahead. It is not contended but that the officers of the approaching train were negligent; it appears to us that they were very clearly and grossly negligent in the performance of their duties.

Now, the question comes back, which is the main question in the case, as to whether the plaintiff himself was guilty of negligence ? There is a rule of the company — rule 97a — which requires that when another train is there under thpse circumstances, either an extra train or other freight train, that the conductor shall use his judgment in protecting his train. It is claimed that the plaintiff should have done something to protect his train and his cars standing there as he brought them out on the main track, that he was not protecting his train at all, that he exercised no discretion in regard to the matter. Now these cars which were standing upon the main track were, many of them, and perhaps all of them, cars that he had taken out from the side track and was putting on the main track for the purpose of making up and going on( with his own train. Other cars on the track were' cars that he had placed to be taken off from the main track, and it was proper for him to use the main track and have his cars standing, on the main track for a portion of the time. I suppose that this custom and manner of doing the work should have been known, and was known to the men upon the approaching train : that is to say, that in order to make up his train he had to place his cars on the main track. And the question is, as to whether he had a right to reply upon the rules of the company as to matters which would be brought to the notice of the approaching train, to rely upon those for his protection ? Whether he had. a right to suppose that this train which was approaching, that it would observe the signals which had been left for it, the torpedoes and signals and the train itself and the signals of the semaphore; and, I should say in passing, that the plaintiff had stopped, himself, at the same point, at the same semaphore, and had a conversation with the operator and told him what he was to do, so that the operator knew where he was and what he was doing and how he and his train were occupied; and the question is whether he had a right to rely upon the notice which would be given to the persons in charge of the other train and a right to assume, for his protection, that they would, as they should, come to a stop and not interfere with him in his business. The jury have found that he was exercising due and ordinary care. The court charged the jury that the rule of ordinary care was the obligation that was upon him under the rule of the company and we are unable to see ourselves why he was not in the exercise of ordinary care. We are strongly inclined to the opinion that he was; that he was doing what an ordinarily prudent man might well do, going forward in the conduct of his work, knowing that the operator knew where he was and what he was doing, and he knew that any railroad man approaching him on another train would know from the signals which were to be observed, that there was a “ live ” train on the track and that he must look out for it, and in doing this we think he was doing all that he was rec m ed to do.

Hurd, Brumback & Thatcher, for plaintiff in error.

Brown & Geddes, for defendant in error.

It is said that there was a certain rule which required him to send a man back and keep him back there, to inform him of the incoming trains. Authorities are cited, decisions of courts of high authority, to show that a rule of that kind is applicable only in the country, and not in the yard, at a station. We think that distinction is well taken and the rule did not apply in this case. But it is claimed that the brakeman who was sent back where the cars were upon the side track, ■at the east end of the town, was guilty of negligence in not staying out until the coming train passed. We think that that brakeman was not in default in coming in. He was notified to come in, and while a wrong signal was given, still he got it, and knew there was no other signal •except that ior him, and he came in and placed himself in the car where he belonged, and we think his coming in in no way contributed to the accident.

This is a very brief statement of the case, and, without going into any very lengthy discussion of the points, we are of the opinion that the judgment of the court of common pleas should beaffirmed.

It is said here that we ought not to affirm-this judgment because the eourt of common pleas cut down the verdict. The verdict was $15,000 •and the court of common pleas required that there should be an abatement of something like $7,000. While there was some discussion upon that subject, we find upon the record that the court of common pleas found that the verdict was excessive, without finding at all whether it was returned under the influence of passion or prejudice, or anything of that kind, but found that it was excessive and that the plaintiff should remit a certain sum.

Without discussion of some of the questions which were raised here, it is Sufficient to say that the case cited from Pendleton St. Ry. Co. v. Rahmann, 22 Ohio St., 446, covers precisely this case and we think the court was acting within the authority recognized by the Supreme Court and that we should, under that decision, affirm the action of the court •of common pleas.

Reasonable cause will be certified for filing petition in error.  