
    The Wabash Railroad Company v. Skiles.
    
      Railway company liability for accident to passenger or employe —Passengers not held to degree of duty required of employes, when — Employe steps upon railway trade from platform — Guilty of contributory negligence, when — Extent of care required of ordinary person in attempting to pass over trade — Law of negligence.
    
    1. The rule of law which excuses passengers from the obligation to observe a strict lookout for trains and locomotives when alighting from or getting upon trains over the tracks of a railway company, does not apply to employes whose duties ■ may require them to cross the tracks in the yards or at the depots of the railway.
    2. Such employes will be held to the exercise of ordinary care in going from a place of safety upon or across railway tracks; and ordinary care requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a railroad track, should use them for the purpose of discovering and avoiding danger from an approaching train; and an omission to do so, without reasonable excuse therefor, is negligence which will defeat an action by such person to recover damages for an injury to which such negligence contributed.
    
      3. Where such an employe, without looking or listening, steps .upon a railway track from a place of safety on a platform, immediately after the passing of a train, and in front of and close to, a backing switch engine, so that he is immediately struck and injured by such engine, he is guilty of contributory negligence, and cannot recover for the injury thus received.
    (Decided May 7, 1901.)
    Error to the Circuit Court of Williams county.
    The defendant in error was the plaintiff below and complained of the defendant, The Wabash' Railroad Company, as follows:
    1. That defendant is now, and was when the cause of action hereinafter stated arose, a corporation for profit duly organized under and operating under the laws of Ohio as a, common carrier of freight and passengers, as a railroad company, and having a station and doing business as such at Montpelier, Williams county, Ohio.
    2. That for several months pri„or thereto and on April 16, 1899, plaintiff was employed in the car department of said defendant corporation, at and about the yards Of said company at the village of Montpelier ; that the duties of plaintiff, respecting his said employment, were to clean and replenish certain of the dining cars of said defendant company arriving at said station on its passenger trains, and to furnish said cars with coal and water and such other attention and care as might be found necessary; that in said employment plaintiff was at said time under the direction and subject to the-orders of a foreman, who had control of the employes of said company at said station who were in said car department; that plaintiff at said time, as compensation for his said services, received and was earning and was paid the sum of fifty dollars per month, and was of the age of forty-six years.
    3. That on said day the yards and tracks of said defendant company at said station were under the direction and control of a yardmaster whose duties were independent of the duties of said foreman of the employes of said defendant’s car department at said station, said yardmaster being charged with the duty of superintending switchmen, and’ switch engines, and the switching and disposition of trains, engines and cars over and' about the tracks of said company at said station; that on said day the position of yardmaster at said station was filled by one .Gilbert; that said yardmaster at said time had no control over the duties of plaintiff, the department whereof said yardmaster was then superintendent being entirely distinct and, separate from the car department whereto plaintiff belonged; nor had plaintiff any power to direct or control any employes in said car department, or said yardmaster.
    4. That on said day, by the rules of said company, and its practice at said station, all westbound passenger trains arriving at said station were held and stationed on the track immediately adjoining to and just south of the passenger platform at the passenger station of said company in said village, said track being known as the Chicago track, while eastbound passenger trains arriving at said station, especially, while said Chicago track was occupied by a passenger train, were stationed and held on a track immediately south of and next to said Chicago track known as the Peru track; that then the said defendant .company had constructed, and there was, no way or means of access to said Peru, track from said passenger platform save by passing directly over the rails and bed upon the bed of said Chicago track.
    5. That on said day it ivas the especial duty of plaintiff to look after and attend to the wants and needs for coal, water and otherwise of the dining car attached to an eastbound passenger train, which said east train, at the time of the accident and happening hereinafter described, came in upon and was standing on said Peru track, said Chicago track having been prior to the arrival of the said eastbound train and being at the time of its said arrival occupied by a westbound passenger train.
    6. That just immediately prior to the happening of the accident hereinafter described plaintiff, by the orders of his said foreman, was upon said passenger platform, with the said westbound train between him and said train on said Peru track whereon was the dining car which was the especial object at that time of plaintiff’s duty, that said westbound train was then in motion westward, and that plaintiff, as soon as the last car thereof had cleared the place on said passenger platform whereat plaintiff stood, being obliged to hasten to his duties towards said dining car before said eastbound train should move,, passed around the immediate rear of said departing train and upon said Chicago track for the purpose of crossing the same to his said car; that at said time there was in force a rule of said company that the switch engine of said company stationed at the yards of said company at said village and then and there under the direction and control of the yardmaster, should not pass along said Chicago track, as and when said Peru track was occupied by a passenger train, as was the ease at that time, unless said engine was preceded by some employe of the company whose duty it was to warn all persons off of said track until said engine-should have gone by, and unless a warning should'be continuously sounded by the bell of said engine; that it was on said day the particular duty of said yardmaster to enforce said rule; that plaintiff did not observe said switch engine but that the sa-me was then noiselessly, rapidly and closely and carelessly following said departing westbound train, advancing backward, and that there was no person preceding said engine, as required by said rule, to warn persons of danger, nor was said engine sounding any alarm by either its whistle or its bell or otherwise; that immediately and without warning of any sort plaintiff was struck by said engine and was crushed and injured as follows, viz.; his right leg was run over and crushed just below the knee, and his left foot was run over and crushed at the instep; that the plaintiff suffered this injury without fault of his own, but wholly through the negligence or default of said defendant company in this and in these particulars, viz.:
    7. That said switch engine, the; same being under the immediate control and direction of said yardmaster, who was riding thereon, was negligently and carelessly permitted to and did advance backward on said Chicago track, following said departing westbound train, so closely and so carelessly and rapidly and noiselessly as to greatly endanger all persons having lawful business to cross said Chicago track for the purpose of approaching said passenger .train on said Peru track, as plaintiff then had to cross said track for the performance of his duties with reference to said dining car; that by the negligence of said defendant company and its said yardmaster then riding thereupon-said switch engine was permitted to and did follow said departing passenger train backward so closely, noiselessly and rapidly, as aforesaid, but without some one preceding the same to sound the warning of its approach, as required by said rule; and that said switch engine was permitted to and then did carelessly and, by the negligence of said defendant company, noiselessly and rapidly proceed over said Chicago track in the immediate rear of said departing train without sounding a warning of its approach either by bell, or by whistle, or otherwise.
    8. Plaintiff says that at the time he stepped upon said track, under the circumstances aforesaid, for the purpose of attending to his duties with reference to said dining car on said Peru track, and at the time said switch engine struck him, as aforesaid, he was exercising care and caution, with full reliance that the way of access to said passenger train on said Peru track would be preserved to the safe passage of passengers and railroad employes having lawful business to cross the same, as plaintiff then had, and that he neither heard nor saw said engine or its approach, and was not aware of its proximity until it was upon him, and that it followed said departing westbound passenger train- so rapidly, closely, silently and carelessly that he had neither time nor opportunity to escape it.
    9. That as a result of said injuries plaintiff was confined to a hospital for five months, where he was necessarily subjected to two amputations of his said injured right leg, below the knee, and to an amputation of his left foot at the ankle, and he was otherwise painfully treated and operated upon; that as the result of said injuries plantiff for many months suffered very great bodily pain and distress and does still suffer great pain and distress; and is broken in health, and has become and is now greatly and permanently crippled; that since receiving said injuries plaintiff has been and is now wholly unable to perform any manual labor.
    10. Plaintiff says that he received each of said injuries and suffered said bodily pain and distress, and is now permanently injured and crippled without any fault of his own, but solely through the fault and negligence of said, defendant company, in the manner and way above set out, and while plaintiff was in the faithful performance of his duty toward defendant.
    Plaintiff says that because of the injuries by him sustained as aforesaid he has been damaged in the sum of twenty-five thousand dollars, for which sum he asks judgment against the defendant, The Wabash Railway Company.
    The railroad company answered as follows:
    It admits that it is now and was at the time when plaintiff’s alleged cause of action arose, a corporation for profit, duly organized under and operating under the laws of Ohio as a common carrier of freight .and passengers as a railway company, having a station and doing business as such at Montpelier, Williams county, Ohio.
    It admits that for several'months prior thereto and on April 16, 1899, the plaintiff was. employed in the car department of the defendant at and about the yards of said company in said village of Montpelier; and that the plaintiff’s duties respecting his said employment were to clean and replenish certain of the dining cars of said company, arriving at said station on its passenger trains, and to furnish said cars with coal and water and to give the same such other attention as might be needed; and that in said employment the plaintiff was, at . said time under the direction and subject to the orders of a foreman, who had control of the employes of said company at said station in said car department.
    The' defendant admits that on said day the yards and tracks of said defendant at said station were under the direction and control of a yardmaster, said yardmaster being charged with the duty of superin-% tending switchmen and the switching and disposition of trains, engines and cars over and about the tracks of said company at said station; and that on said day the position of yardmaster at said station was filled by one Gilbert, and that the plaintiff had no power to direct or control any of the employes in said department, or said yardmaster.
    This defendant admits that on said day the track immediately adjoining to and just south of the passenger platform at the passenger station c»f said company, in said village, known as the Chicago track, was occupied by a certain westbound passenger train; and that immediately south of said track and next thereto, was another track, known as the Peru track, and that it was necessary to cross the said Chicago track to get from the passenger platform of said station to said Peru track.
    This defendant admits that on said day it was the special duty of said plaintiff to look after the needs for coal, water and otherwise of a certain dining car attached to an eastbound passenger train, which said train at said time was standing on said Peru track.
    This defendant admits that plaintiff stepped on said Chicago track immediately in front of a certain switching engine of the defendant which was proceeding westward thereon a short distance in the rear of the said westbound passenger train, and that said plaintiff was struck by said engine and seriously injured and crippled.
    This defendant denies all and singular the allegations and averments of said petition not herein expressly admitted to be true.
    Further answering, this defendant says that it denies that said plaintiff at the time he stepped upon «aid Chicago track and was struck by said switching engine was exercising care and caution, but on the contrary alleges that said plaintiff was guilty of negligence directly contributing to his said injuries in stepping on said track immediately in front of said approaching engine, of whose approach he was well advised and knew, or might have known by the exercise of ordinary and reasonable care for his own safety, and in failing to keep a proper and reasonable lookout for his safety at the time he stepped upon said track; and ■ defendant alleges that if the plaintiff was injured in consequence of the negligence of any one, such negligence was that of plaintiff himself, and not of this defendant or any of its officers, servants or ebaployes.
    This defendant therefore prays that it may go hence, without day, and recover its costs.
    The plaintiff replied, denying each and every averment of the answer which was not an admission of the averments contained in the petition. A jury was impaneled and sworn and the cause proceeded to trial in the court of common pleas, and the plaintiff offered to introduce evidence in support of his petition, but the defendant, by its counsel, and before the introduction of such evidence, interposed an objection to the reception of any testimony for the reason thát the petition failed to state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff, which objection the court sustained and refused to allow the introduction of testimony under said petition in support thereof. An exception was taken, an'd the plaintiff not asking to plead further, the defendant moved the court for judgment in its favor upon the pleadings, which motion the court granted, dismissed the cause and rendered judgment against the plaintiff for the eo>sts. On proceedings in error in the circuit court the judgment of the common pleas was reversed and the cause was re^ manded to the court of common pleas for further proceedings and trial. The railroad company prosecutes this proceeding in error to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.
    
      Smith & Beckwith, for plaintiff in error,
    cited the following authorities:
    
      State ex rel. v. Crites, 48 Ohio St., 142; Headington v. Neff, 7 Ohio (pt. 1), 229; Trott v. Sarchett, 10 Ohio St., 241; Hillier v. Stewart, 26 Ohio St., 652; 1 Samuel, 119, n. 7; Railway Co. v. Elliott, 28 Ohio St., 340; Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Railway Co. v. Crawford, 24 Ohio St., 631; Railway Co. v. Depew, 40 Ohio St., 121; Elliott v. Railway Co., 150 U. S., 245; Dakota, 41 N. W. Rep., 758; Aerkfetz v. Humphreys, 145 U. S., 418; Railway Co. v. Houston, 95 U. S., 697; Wilber v. Wisconsin Central Co., 57 N. W. Rep., 356; Loring v. Railway Co., 31 S. W. Rep. (Mo.), 6; McCadden v. Abbot, 66 N. W. Rep., 694; Tomko v. Railway Co., 37 N. Y. Sup., 144; Gardner v. Railway Co., 95 Mich., 240; Ritzman v. Railway Co., 40 Atl. Rep., 975; Railway Co. v. Pfuelb, 37 Atl. Rep., 1100; Carlston v. Railway Co., 120 Mich., 481; Railway Co. v. Baird, 94 Fed. Rep., 946; 
      Railway Co. v. Moseley, 57 Fed. Rep., 921; Bailey Personal Injuries, Secs. 1270 to 1289; Warner v. Railway Co., 168 U. S., 339; King v. Railway Co., 99 Fed. Rep., 251; Railway Co. v. Freeman, 174 U. S., 379.
    
      John M. KilUtts, for defendant in error,
    cited the following authorities:
    
      Railroad Co. v. Margrat, 51 Ohio St., 130; Railway Co. v. Erick, 51 Ohio St., 146; Parsons v. Railway Co., 113 N. Y., 355; Snyder v. Railway Co., 60 Ohio St., 487; Railway Co. v. Keary, 3 Ohio St., 201; Berea Stone Co. v. Kraft, 31 Ohio St., 287; Railway Co. v. Lavalley, 36 Ohio St., 221; Railway Co. v. Henderson, 37 Ohio St., 549; Dick v. Railway Co., 38 Ohio St., 389; Railway Co. v. Murphy, 50 Ohio St., 135; Flike v. Railway Co., 53 N. Y., 549; Corcoran v. Holbrook, 59 N. Y., 517; Fuller v. Jewett, 80 N. Y., 46; Slater v. Jewett, 85 N. Y., 61; Crispin v. Barrett, 81 N. Y., 516; Sheehan v. Railway Co., 91 N. Y., 332; Dana v. Railway Co., 92 N. Y., 639; Railroad Co. v. Powers, 74 Illinois, 341; Railway Co. v. Kernochan, 55 Ohio St., 306; Pantzar v. Mining Co., 99 N. Y., 368; Benzing v. Steinway, 101 N. Y., 547; Railroad Co. v. Becker, 67 Ark., 1; s. c., 46 L. R. A., 814; Railway Co. v. Culpepper, 46 S. W. Rep., 922; Railroad Co. v. Bussey, 95 Georgia, 584; Helton v. Railway Co., 97 Alabama, 275; Hall v. Railroad Co., 46 Minnesota, 439; Sobieski v. Railroad Co., 41 Minnesota, 169; Railway Co. v. Crawford, 24 Ohio St., 631; Railway Co. v. Fleming, 30 Ohio St., 480; Railway Co. v. Picksley, 24 Ohio St., 654; Railway Co. v. Depew, 40 Ohio St., 121; Railway Co. v. Rathgeb, 32 Ohio St., 66; Railway Co. v. Whitacre, 35 Ohio St., 627; Beach, Contributory Negligence, Sec. 160, and cases cited; Parsons v. Railway Co., 113 N. Y., 355, 3 L. R. A., 683; Terry v. Jewett, 78 N. Y., 338; Brassell v. Railroad, 84 N. Y., 241; Betts v. Railroad, 191 Pennsylvania, 575, 45 L. R. A., 261; Murphy v. Railroad Co., 88 N. Y., 445; Betts v. Railway Co., 191 Pa., 575; Railway Co. v. Kernochan, 55 Ohio St., 306; Robison v. Gary, 28 Ohio St., 241; Kelley v. Howell, 41 Ohio St., 438; Gardner v. Railway Co., 97 Mich., 240; Wilbur v. Railway Co., 86 Wis., 535; Keefe v. Railway Co., 92 Iowa, 182; McCadden v. Abbot, 92 Wis., 551; Beach Con. Neg., Secs. 178-9; Railway Co. v. Bingham, 29 Ohio St., 364.
   Davis, J.

Whether the plaintiff has, or has not, the right to recover on the facts alleged in his petition, is a question which was fairly raised by the defendant’s objection to the introduction of any testir mony in support of the petition, and by the defendant’s motion for judgment in its favor, upon the pleadings. In seeking for the proper answer to this question, it may be assumed that the defendant was negligent in closely and rapidly following up the westbound train with a switch engine, without signals and without any one preceding it to give warning of its approach, as required by the defendant’s rule; for the inquiry which is raised by the averments of the petition is not so much whether the defendant was negligent, as whether the plaintiff’s own want of ordinary care was the proximate cause of his injury.

There is nothing clearer in the case stated in the petition than that the plaintiff was in a place of safety while he remained on the platform. However great was the negligence of the defendant, it was harmless to the plaintiff while he remained on the platform. 1-Iis act of stepping upon the track immediately in front of the backing engine was the proximate and concurrent cause of his injury. If he did this with the exercise of such care as a person of ordinary prudence would exercise under like circumstances, then he was legally without fault and is entitled to recover. If he stepped upon the track without such care, he brought his injury upon himself and is not entitled to a judgment against the defendant. If he had looked he could have seen the approaching engine, indeed must have seen it, for he avers in his petition that the “westbound train was then in motion westward, and that plaintiff, as soon as the last car thereof had cleared the place on said passenger platform whereat plaintiff stood * * * passed around the immediate rear of said departing train ■* * * and that immediately and without warning of any sort plaintiff was struck by said engine.” Yet he avers, that “he neither heard nor saw said engine or its approach, and was not aware of its proximity until it was upon him, and that it followed said departing west bound passenger train so rapidly, closely, silently and carelessly that he had neither time nor opportunity to escape it.” It is inconceivable that a man of ordinary prudence would under .such circumstances have failed to look or listen before stepping on the track, so as to have both seen and heard the engine which was so closely following the passing train. To an ordinarly prudent man a railroad track is itself a warning to be alert, to use his senses, to look and listen; and an ordinarily prudent man would not blindfold himself, nor stop his ears, when about to exercise his intention of leaving a place of safety on the platform to cross the track in the presence of moving trains. Practically this is just what the plaintiff did do; and he claims that he had the right to close his senses, because he was an employe of the railroad company, and had duties to perform, and was in a hurry. He claims the right to ignore the plainest and most ordinary dictates of prudence, in a full and implicit reliance on the diligence and faithfulness of the other employes of the company in performing their duties. It has been laid down as the law that passengers who are required to cross railroad tracks in getting upon or alighting from trains, have the right, from the nature of their contract, to expect a safe place for that purpose and may govern themselves accordingly; but such immunity has never been conceded to travellers upon a railroad crossing, having equal rights there with the railroad company, and still less to employes in the yards or depots of the company. The latter have no invitation or implied contract, as passengers do have, to perform their duties in a safe place. The very nature of employment about the tracks of a railroad involves notice of the danger of it, and nobody knows better than an employe that other employes are liable to be careless in the observance of rules- and lax in the performance of duty. Therefore he cannot be .permitted to shut his eyes to obvious dangers, and to act with “full reliance” that rules will be observed, and a safe passage kept for him whenever his duties call upon him to cross the tracks. He cannot be excused from the rule that ordinary prudence requires that a person in the full enjoyment of the faculties of seeing and hearing, should use them when about to pass over a railroad track, and that the omission to do so is' contributory negligence when it immediately re-suits in an injury which might have been avoided if the injured person had looked or listened. Railway Co. v. Elliott, 28 Ohio St., 340; Railway Co. v. Crawford, 24 Ohio St., 631. The plaintiff in this case Avas in a place of safety. He was not bound to go upon the track in front of an advancing engine, even in the urgent performance of his work. In doing so without looking or listening, he was clearly guilty of negligence proximately contributory to his injury. The views which we have here expressed are not only implied in previous decisions of this court, but they have been very plainly defined in the following cases: Loring v. Kansas City, etc., Railway Co., 128 Mo., 349; Elliott v. Railway Co., 150 U. S., 245; Aerkfetz v. Humphreys, 145 U. S., 418; Chattanooga, etc., Railway Co. v. Downs, 106 Fed. R., 641.

The case of Snyder v. Railway Company, 60 Ohio St., 487, does not apply. Snyder was on the track, engaged upon a duty which required' him to be there, and could have been seen by the train men in time to have avoided the injury. It was not a/case in which the inference of contributory negligence necessarily arose. In this case, the plaintiff was in a place of safety, and in blind reliance upon his assumption that no engine Avould be following the westbound train and that nobody else would be guilty of negligence, left the safe place and stepped upon the track immediately in front of the backing engine, without looking, and was injured. In this case the inference that the plaintiff Avas himself negligent and that his negligence directly contributed to his injury is unavoidable. If all the material facts are undisputed, and admit of no rational inference but that of negligence, the question becomes a question of law. Rail way Co. v. Crawford, 24 Ohio St., 631; Railway Co. v. Rathgeb, 32 Ohio St., 66. The judgment of the court of common pleas was right, and it follows that the judgment of the circuit court must be reversed and that of the common pleas affirmed.

Btjrket, Spear, and Shauck, JJ., concur.

Minshall, O. J., dissents.  