
    NEGLIGENCE — EVIDENCE—PLEADING—CHARGE TO JURY.
    [Ashtabula Circuit Court,
    March 14, 1895.]
    Raubie, Frazier and Burrows, JJ.
    Lake Shore & Michigan Southern Ry. Co. v. John R. Beckwith.
    1. Recovery can be had oney eor Negeigence Aeeeged.
    In an action against a railway company for personal injuries sustained by a brakeman in passing under a bridge, where there is no allegation as to the duty of deleudant to give notice that the bridge was too low or that the cars were too high to permit a brakeman to pass the bridge in safety, a charge that it was the duty of the company to give such notice is improper, it being a violation of the express rule that recovery can only be had tor the negligence alleged.
    
      2. Testimony as to Negligence not Alleged — Competent, When.
    Where the only allegations in plaintiff’s petition in an action against a railway company for personal injuries sustained by a brakeman were that the defendant carelessly and negligently maintained and used an overhead bridge in such condition that it was too low to allow a man of ordinary height upon - the top of a refrigerator car to pass through without being struck by the upper part thereof, evidence that there was no signal or notice of warning of such condition is incompetent; such testimony is not admissible unless the omission to provide signals is alleged as a ground of recovery, or unléss the plaintiff’s own testimony raised a presumption of negligence on his part, in which case it might be admitted to rebut that presumption.
    B. Evidence oe Non Expert as to Apparent suffering,
    A non-expert medical witness may .testify as to apparent suffering and pain as complained of by a party while undei his observation, but is not competent to give the cause or character of the disease, nor evidence as to what pain was, suffered.
    4. Reason for Limitation of the Rule.
    The fact that it is so easy to simulate pain, aches and diseases, and making complaints to be afterwards introduced in evidence to show the extent of injury and its recovery, there should be no extension of the rule admitting opinion evidence in personal injury cases, especially where the declarations were made long after the injury, and the testimony thereof comes from the wife of the person injured with no other person present at the time they were made.
    5. Rule Applied Excluding Evidence of Past Suffering.
    The testimony of non-expert witnesses as to condition of health and as to suffer • ing, pain, etc., is limited to complaints of present suffering under which one is laboring and not to a history of the past. Therefore, a response as to what pain plaintiff suffered, “that his head did not pain him so much that wintes until it come warm weather, and then he couldn’t be out in the hot sun much, it made his head ache so bad,” does not come within the rule and i» incompetent.
    6. Instruction as to Burden of Proof.
    In an action against a railroad company for injuries to a brakeman while passing under a bridge, by colliding with the upper portion thereof, under the rule in Coal and Car Co. v. Norman, 49 Ohio St. 598, the plaintiff is required to allege and prove that he had no knowlege of conditions by which he was injured. It is, therefore, the duty of the court to properly instruct the jury as to the burden of proof in such cases, and this duty is not discharged by a general charge as to abstract rules concerning negligence and contributory negligence.
    7. Jury Should not Determine issues.
    The duty of determining the issues to be tried in a case devolves upon tne court and should not be delegated to the jury and for the court to instruct the jury that they are to take the pleadings and determine the admissions, etc., therein, although the court has stated substantially the admissions as understood by the court, is to virtually instruct the jury to determine the material issues therein and ascertain if the court is correct in his statement thereof, and is erroneous.
   IyAUBIR, J.

The case of the Take Shore & Michigan Southern Railway Company against John R. Beckwith, is a proceeding in error, brought to reverse the judgment of the court below, rendered in favor of Beckwith against the company, for injuries claimed to have been sustained by him while a brakeman in the employ of the company.

The case was tried by Judge Canfield and a jury, and all of the evidence, the charge, etc., is set out in the bill of exceptions, which is attached to the petition in error.

The substance of the claim was, in short, that the plaintiff while acting as a brakeman upon the line of the company, on its branch road, running through this place, while in the periormance of his duty on top of a refrigerator car, in the train in which he was a brakeman, on its journey from Youngstown to Ashtabula, in the night season, was struck by some part of an overhead bridge, called bridge No. 6, two miles east of this town, on the line of the road, and thus received his injuries. ‘

The claim in regard to the negligence of the defendant is somewhat general. The allegations are that it carelessly and negligently maintained and used this bridge, in its then structure and condition, it being too low to allow a man of ordinary height, upon the top of a refrigerator car, to pass through the bridge without being struck by the upper timbers or cross pieces of the bridge.

The evidence discloses that the train, on the evening in question, was going from Youngstown to Ashtabula, and at that time bridge No. 6 was undergoing repairs, and while the plaintiff thought the order in regard to slowing up for that bridge had expired or been revoked, he conceded the bridge was still undergoing repairs-; and other witnesses testified, so as to make it quite positive that there was, at that time, an order for the slowing up of the train, as it approached and passed over this bridge No. 6, for the reason that it was being repaired and changed from an overhead to an open bridge, so the beams and other cross pieces of wood and iron on the top could be taken away; and on that evening, at Andover, the conductor had received an order to slow up at bridge No. 5, the one north of bridge No. 6, perhaps a mile or a little over distant from it, and to cross that bridge at a speed not to exceed five miles an hour, and the testimony would fairly show that the plaintiff, Beck-with, was informed of that fact, by the conductor, at Andover. The engineer was also informed of it at Andover.

The plaintiff was in the cab with the engineer just before he started up on the refrigerator car, which was pretty near the head of the train, for the purpose of setting the brakes, to slow down the train, and he said the engineer made a remark to him, that he was told substantially of the order to slow up at bridge No. 5, to five miles an hour.

It was his duty, as he himself testified, without any special ordei given to him at the time, at the proper time and place to go and set brakes and assist the engineer to slow up the train. '

The engineer testified also that his duty was, if the brakemen did not, at the proper time and place, proceed to set the brakes, to notify them by whistle to do so.

In this way the plaintiff, on this night, passed from the cab of the engine -up onto the train and onto this refrigerator car, and walking back over the top of it, to set the brake, which was at the rear end, he was struck by some part of the works of the bridge, and was knocked senseless on the car, and was there found.

I have stated, in short, what the claim of negligence is, in the petition, that the company carelessly and negligently maintained and used the bridge, in the form and condition in which it was.

During the trial of the case while the plaintiff was on the stand, this question was asked him, on page 8 of the record:

“Q. You may state how it was about there being any signal-post or anything of that character, hanging over the track at the south end of the bridge anywhere ?
“Mr. Hall: I object, as they do not allege in the petition any omission to provide signals as any ground of recovery.
“The Court: I think he may answer, as they aver it was without notice.
“ Counsel for defendant except.
“ A. There was not any.
“ Counsel for defendant object to the answer and ask to have it excluded ; motion overruled and counsel for defendant except.”

The court’s attention has been called to Baltimore & O. R. R. Co. v. Whitacre, 85 Ohio St. 627, in support of the propriety of this question and answer.

The third paragraph of the syllabus reads as follows:

“ In an action by a traveler on a public highway, against a railroad company,to recover for injuries by collision with a passing train at a public crossing, alleged to have been caused by negligence in the management of the train, where the evidence tends to show that he did not exercise proper care and caution to avoid the injury, it is competent for him to show that there was no signboard up, as required by law, as reflecting upon the question of his want of care, although the want of such signboard is not alleged as a ground of recovery.”

If there was no charge in the petition of negligence in not giving the brakeman notice of the height of this bridge, the evidence might and would be competent, under the B. & O. R. R. Co. v. Whitacre, supra, for the purpose expressed in it. That is, although there was no negligence charged against the company in the petition, as a ground of recovery, for the absence of the signboard at the crossing, yet where the plaintiff’s own testimony showed or raised a presumption that he was guilty of negligence, it might be competent, for the purpose of rebutting that, to show that there was, in fact no signboard there, and if, in the case at bar, the evidence had been received and gone to the jury for any such purpose, there could be no objection to it, but it did not.

The court overrules the objection, upon the ground that failure to give notice is alleged in the petition. There can be no other meaning to what the court says, which I repeat again:

“ Mr. Hall: I object as they do not allege in the petition any omission to provide signals as any ground of recovery.
“ The Court: I think he may answer: They aver it was without any notice.”

So it can refer to nothing else, only the averments in the petition.

In connection with this testimony, I desire to call attention to request number ten of counsel for defendant below, and the charge of the court in reference to it, on page 128:

“ 10. There is no complaint made in the pleadings in this case, of any omission of duty by the defendant in failing to give notice of the location, height, or dimensions of any car or bridge, and for such omission, if there was, plaintiff cannot recover.
“This the court refused to give, to which the defendant excepted.”

The response to that, upon the part of the court, is upon pages 142, 143 and 144 of the record :

“ The caution that is required depends largely upon the facts, circumstances and surroundings under which a party is placed at a particular time. If the circumstances were such and the evidence shows his situation to have been such, notwithstanding what knowledge the proof shows he did have, that he was under no obligations and had no reason to suppose, by the exercise of his thinking faculties, that he was in any danger, then we say to you, gentlemen of the jury, that if the defendant company was negligent, and had given to him no notice, they would be liable to him for any injury which he may have sustained, by reason oí such negligence.
“ In the first place, gentlemen, you should determine the question as to whether or not the defendant company did use and exercise ordinary and reasonable care, in the maintaining of this bridge, in the manner that it was, knowing what kind of cars were to be run over it. Did they do this, or if they did not do it, would it be dangerous for him to stand upon this refrigerator car, in passing under or over this bridge ? Did he have notice ? Did the defendant company do its duty ? As we have said before, it was the duty of the defendant to have a due regard for the safety of their employes in the discharge of their duties.”

To the refusal to give the request asked and the charge as given in regard to notice, there is an exception in the record. The exception to the charge is upon page 152. The exception to the request follows that.

It will be noticed, therefore, that the court permits the evidence to go to the jury, under the statement of the court, that the plaintiff does aver that it was without notice to him on the part of the compan. Then the court proceeds in its charge to call the attention of the jury to the fact that it was the duty of the company to give him notice, if it maintained the bridge in the condition it was, if it was too low to allow him to stand on 'the refrigerator car and pass under in safety.

I have stated what the charge of negligence is in the petition, thus adding to the allegations of negligence in the petition as a ground of recovery the want of notice on the part of the company to the brakeman of these matters.

This is in violation of the express rule that is held by all courts, that a party can recover only for the negligence charged in his petition. There was no allegation in it that the defendant’s duty was to give the plaintiff notice of the fact that this bridge was too low or the cars were too high for him to stand upon and pass through, or under, the bridge in safety. Of course it may be a fact that no such notice was given, and it may claim reasonably that such was its duty, but there is no allegation of it, and they do not seek to recover against the defendant on that ground. Hence it was error in the court to submit such a question to the jury and to admit the evidence that I have referred to upon that ground.

Coming to another matter in the evidence, on pages 52 and 53, the wife of the plaintiff below, Mrs. Beckwith, was on the stand, and was examined in regard to his condition, and was permitted to state what he complained of; that he complained of pain in his head and dizziness: to all of which there was exception taken. The examination proceeded until this answer was made:

“ A. I do not know as I can tell you just how often he made comjffaints of being dizzy.
“ Q. Did you observe anything in his actions which indicated anything? *
“ A. Yes, sir.
Q. What did you observe?
“ Counsel for defendant object; objection overruled, and counsel for defendant except.
“ A. He would have to go and He down.
“ Counsel for defendant objects to the answer and ask to have it excluded ; motion overruled, and counsel for defendant except.
Q. How long did you remain in Ashtabula after the injury, before you returned to Colebrook ?
“ A. I think we went back in December.
■ “ Q. What transpired after you returned to Colebrook, what pain did Mr. Beckwith suffer?
“ Counsel for defendant object; objection overruled, and counsel for defendant except.
“ A. His head did not pain him so much that winter, until it came warm weather, and that he couldn’t be out in the hot sun very much, it made his head ache so bad.
“ Counsel for defendant object to the answer and ask to have it excluded ; motion overruled, and counsel lor defendant except.”

This was the wife of the plaintiff, and there was no evidence by her tending to show that any witness was present, at the time of these conversations, or when the complaints were made by the husband to the wife. But no objection was taken to it on that ground. The objection seemed to be to the competency of the testimony and not to the competency of the witness to testify to the matter, and for that reason, following our repeated decisions in these matters, that where a mere general objection is taken, it is as to the competency of the evidence and not to the witness, there is nothing in the matter on that ground.

Mrs. Beckwith was the wife, as I have said, of the plaintiff, and these declarations were long after the injury, and under those circumstances, common experience shows it is so easy to make up a case by making complaints to be afterwards introduced in evidence, to show the extent of the injury and the person’s recovery, and it is so easy to simulate pain, aches and diseases, that such testimony, coming from such a source as the wife of a party, with no other person present, should be carefully scrutinized, and there should be no extension granted to the party, of the rule admitting such testimony, under such circumstances. Undoubtedly the rule is pretty well defined, and courts- and the bar know its limitation, as to non-experts and what they may do and say in cases of that character. It is limited in the case of non-experts, such as Mrs. Beckwith was, to complaints of present suffering that the party was then laboring under, not to a history of the past. It must be confined to suffering that the party was complaining about then and suffered or was laboring under. The opinion of the non-expert cannot extend to the cause or character of the disease, the cause or character of the suffering or pain. That is limited to experts, and a non-expert may give an opinion of apparent suffering and pain complained of by the party at the time when the patient or party is under his or her observation, because such matters of pain and suffering, sickness, or health, are of such character, sometimes, that it is almost impossible for the witness to state to the jury and place them in a position that they may see the party as he existed at the time. They cannot delineate, in other words, the symptoms of pain and suffering, so that another may understand and appreciate what was the apparent condition of the party, and thus ascertain his real condition. So a non-expert witness may testify as to the party appearing to be sick or well or laboring under some disease, but it is not competent, as I have said, to give the character or cause of the disease he is apparently suffering from.

Referring to this testimony, the question was asked:

“ Q, What did you observe ?
“A. He would have to go and lie down.”

It is possible and barely probable that that comes within the line of an opinion that a non-expert may give. Clearly she might say he had to lie down, or he appeared too weak to stand up, and I am not sure but what the witness may say, “ He would have to go and lie down.” There is no reference, however, to what the cause was. “ He would have to lie down ;” but it is near the line, with a doubt around it that prevents us from saying that in that respect, at least, the court erred.

The question, “ What transpired alter you returned to Colebrook; what pain did Mr. Beckwith suffer?’’was improper. How could that non-expert tell what pain he suffered? If it had been confined to what she observed in regard to it, whether he appeared to suffer pain or not, that would be one thing, but what pain did he suffer? That is asking for the description and character of the pain. What kind of a pain was it ? What was it he was suffering from?' But passing that, the answer is still more objectionable. The question was:

“ Q. What transpired, after you returned to Colebrook, what pain did Mr. Beckwith suffer ?
‘‘A. His head did not pain him so much that winter, until it came warm weather, and then he couldn’t be out in the hot sun very much; it made his head ache so bad.”

How could she tell ? She said: “ His head did not pain him so much that winter, until it came warm weather, and then he couldn’t be out in the hot sun much, it made his head ache so bad.” If she had been telling that he appeared to be suffering at the time when he was making complaint to her, as she had heretofore in the testimony, that would be one thing, and competent. Although it was such a long period after the injury, it was competent for her to testify to it, and competent for the jury to give it weight and effect; but she is not telling about any complaint that he made at any special time; she is covering the whole winter and summer with the general statement that “ his head did not pain him so much in the winter, until it came warm weather, and then he couldn’t be out in the hot sun very much, it made his head ache so bad.”

Sne was simply expressing an opinion in regard to a matter that she was not competent to express an opinion about, and the testimony does not come within either of the lines laid down as a limit to the testimony of a non-expert. She was simply giving her idea of the fact that during the winter it did not pain him so much and that in hot weather he could not be out in the sun, because that made his head ache so badly. She could not tell anything about that, except from his statement of it, and she was not asked in regard to his statements in reference to it, nor was she answeiing so as to his statements. The court erred, in our opinion, in permitting that question and the answer to it.

There is exception made as to the charge of the court, that it allowed the jüry to determine the issues which were to be tried. I refer to pages 136 and 146 of the charge to what the court said upon that proposition:

“ Gentlemen of the jury, you will have this answer before you, and we say to you, that so far as you find that the answer admits the allegations of the petition, so far they are to be taken by the jury as true, without any proof whatever being made in relation thereto, we have stated substantially the admissions as we understand them, but it is the duty of the jury to examine the answer, and see what is admitted in the answer, that is alleged in the petition, and therefore, what is admitted to be taken as true.”

And on page 146 we find the following:

• “ So that gentlemen of the jury, if you fail to find, by a preponderance of the evidence, that the defendant was guilty of negligence as charged in the petition, it would be your duty to return a verdict for the defendant; but if you find by a preponderance of the evidence, that in the respect named, in the petition, the defendant failed to use and exercise that degree of care and caution for the protection of its empjoyes that ordinarily prudent persons placed in the same situation, and engaged in the same business, would ordinarily use and exercise, then we say to you, gentlemen, if you find this to be true, then you should proceed to the other question, and determine from the evidence, whether or not the plaintiff contributed to the injury that he received.”

Thus it would seem that the court turned the case over to the jury, to find out or themselves, what the material issues in the case were. Not only did the court do that, but he substantially instructed the jury: ‘‘We have told you what they are, but it is for you to say, whether that is correct. You are to take the pleadings and examine them.” That a court shall thus flatter a jury, by injuring the party, is going entirely too far. Tell the jury what the issues are, and what the material issues are in the case, and not leave it to the jury. For the court to allow the jury to say he himself erred in the statement of the allegations in the pleadings, is going beyond anything I ever saw or heard of. For this reason, we think the court erred.

As to the burden oí proof, it arbes in request 13 and the response of the co'urt thereto. Request 13 was not a statement to the court of what the principle was, but a mere request to the court to charge the jury upon the burden of proof. While it was the duty of the court to do it without that, yet his attention is particularly challenged to it by counsel" for the defendant and the court is specially asked to charge the law, and of course the correct law, upon that proposition, as to the burden of proof in the case. I need refer to but one ground of what the court says to the jury upon page 138 of the charge:

“ Before the plaintiff is entitled to a finding in his favor, that presumption of contributory negligence that arises from the evidence of the plaintiff must be removed by the plaintiff, before the plaintiff would have a right to recover ; but if no presumption of that kind does arise, or inference can be drawn from the testimony of the plaintiff that the plaintiff was guilty of contributory negligence ; or if it has been removed, whatever there may have been, then we say to you that the burden of proving contributory negligence rests upon the defendant, in order to .authorize the jury to make a finding in its favor upon the charge of ■contributory negligence.
“ I need say nothing further about that, than to say that it is error, following the holding of this court in the case of the New York, Chicago & St. Louis Railroad Co. v. Woods, decided at the present term.

But there is still something further in this case upon the question of the burden of proof and contributory negligence. The plaintiff took special exception to what the court did not say to the jury, as to the burden upon the p aintiff of proving that he had no knowledge of thej defects claimed. It is alleged in the petition that as to the defects, in the respects claimed, in the appliances of the company, he had no knowledge. The law is, not that the plaintiff must allege want of knowledge of the defects claimed in the means or appliances of the defendant, which caused the injury, but must prove it. That has been clearly and definitely determined in Coal and Car Co. v. Norman, 49 Ohio St. 598. It is there held, that it is necessary for the plaintiff to allege the want of knowledge of the defects and, it being material to his right of recovery, that he must prove it, before he can recover.

Without taking time to read from this lengthy charge on these propositions, I simply state their substance.

The court separated the matter into propositions. First, was the defendant guilty of negligence ? Or second, was the plaintiff guilty of contributory negligence ?

Those were the two points that the jury were called to determine and consider. Simply was there negligence upon the part of the defendant or contributory negligence on the part of the plaintiff? That if the evidence disclosed there was negligence on 'the part of the defendant, as claimed, and there was no contributory negligence on the part of the plaintiff, then the plaintiff was entitled to recover ; and in reference to that, I hare already read one portion of the charge, which has no special reference now to this want of knowledge of the defects, except as it is simply merged into that proposition of contributory negligence, the burden of which would rest upon the defendant to prove,

The court did not tell the jury that they might take into consideration the plaintiff’s knowledge ; and if, with his knowledge, he acted as ordinarily prudent persons would have acted, under the same circumstances, then he was not guilty of contributory negligence, and he might recover.

Nowhere did the court tell the jury that the burden of proof was upon the plaintiff to establish that he had no knowledge of these defects. It was a very material matter in that case, and pertinent, as the plaintiff himself even did not testify that he did not have knowledge, to refrain him from doing it, and he was not inquired of about it. He said he knew that on an ordinary car eighteen or twenty inches less in height than a refrigerator car, a man of average height (or even himself, a man of more than average height, as he stated he was six foot and one-half inch), could stand and pass under that bridge in safety. He was passing that bridge daily and had been for a long time, on freight trains; in cars and out of them ; on top and below; and if anybody had knowledge of the height of that bridge and its danger, he must have been the man; yet he was not asked about it with reference to standing upon a refrigerator car ; and while he alleged, and was required to allege that he had no knowledge of the. defects claimed, by which he was injured, he was not required to prove it. It being an essential allegation, of course it followed, on general principles, that he would be required to give evidence tending to prove it and that he could not recover without such evidence. But I say the matter has passed beyond our jurisdiction and has been determined in Coal and Car Co. v. Norman, supra, where it is decided that in such a case there must be that allegation and there must be proof of it, and the burden rests upon the plaintiff to furnish it.

It is useless perhaps to take further time with this case. For these reasons the judgment of the court must be reversed and the cause remanded.  