
    INJURY TO FIREMAN WHILE UNDER. HIS ENGINE.
    Circuit Court of Hamilton County.
    The Cincinnati, Hamilton & Dayton Railway Co. v. John H. Tangeman.
    Decided, June 13, 1908.
    
      Negligence — Fellow-S&rvant—Pleading—Special Findings 5 y Jury — Inconsistencies in — Evidence.
    1. In tlie absence of proof to the contrary an engineer will be regarded as superior to his fireman, and a finding by the jury that the injury to the fireman was caused by the negligence of fellow-servants is inconsistent with a finding that the engineer assured the fireman it was safe to go under the engine, although no precautions had been taken to protect him while there.
    2. A finding by the jury that the injury was the result of an accident may be interpreted as merely negativing the charge against the defendant of malice and willfulness contained in the petition.
    
      Harmon, Colston, Goldsmith ds Hoadly, for plaintiff in error.
    
      Frank H. Kunkal and Thos. L. Michie, contra.
    Plaintiff, -a fireman, was injured while under his engine cleaning out the ash pan, by a cut of freight cars being allowed to run against the enginp. He recovered a verdict below of $7,500.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The omission to close the switch after the engine passed onto the siding is neither charged nor proved as an act of negligence by the defendant company, and does not support the general verdict for plaintiff.

The special finding of the jury that the negligence of the defendant consisted in part of “the word from engineer Dumphy to fireman Tangeman, i. e., 'alright John,’ ” supports the averment in the petition that “the defendant neglected to place a flag or some other signal of warning to other engines and cars in the said yard for the protection of the plaintiff while under the said engine” because it shows not only a positive notice of safety to the fireman, but also tbe absence of any precaution by the engineer to protect him.

The finding of the jury that the plaintiff w.as hurt through the negligence of one or more fellow-servants is inconsistent with the finding that he was hurt through the negligence of the engineer, who must, in the absence of proof to the contrary, be regarded as a superior servant.

The finding of the jury that the injury was the result of an accident, was intended merely to negative the charge in the petition of malice or willfulness.

There was no error in overruling the motion of defendant for judgment upon the special findings of the jury, and the judgment will be affirmed.  