
    NEGLIGENCE — RAILROAD COMPANY — BURDEN OF PROOF.
    [Mahoning Circuit Court,
    October Term, 1894.]
    The Pittsburg and Western Ry. Co. v. Ackworth.
    1. Duty or Employee as to Observing Ruees of Company.
    One of the rules of a railroad company provided that “ Brakes must be examined before attempting to use them, and those having occasion to use them must know their condition and take no risk.” In an action brought to recover damages from such company for the death of one of its brakemen, caused by a defective brake on ono of its cars. Held • While the duty of the deceased must be measured with reference to the rules of such company and especially the above rule, it was not necessary that its letter be complied with ; but it was incumbent on the deceased to give reasonable attention to such rule and a reasonable compliance to its requirements, measured solely by the time and occasion.
    2. Presumption as to Observance of Ruees and Burden of Proof as to Ignorance of Defective Appeiances.
    The presumption is that such employee did his duty and knew of the defective condition of such brake ; and therefore, in such action, the burden of proof rested upon the plaintiff to show that the deceased either in fact did not know of such defect, or if he did, that he was not negligent in using the brake.
    3. What Dangers a Servant Assumes by his Contract of Service.
    A servant, by his contract of service, assumes only the ordinary and usual dangers of such employment. And if the master conducts his business with an appliance that is fatally defective, the servant, entering that employment, does not take upon himself the risks incident to such defective appliance; unless he actually has knowledge of it at the time.
    4. Injuries Caused by Appliance Becoming Defective After a Servant Enters His Master’s Service.
    If, after a servant has entered into his master’s service, an appliance, with which the particular business is carried on, becomes defective and causes an injury to the servant, it is simply a question on the part of the master, to defeat a recovery for such injuries, whether the servant was guilty of contributory negligence, and it is not a question whether he assumed such risk by entering the service.
    5. Province of Jury in Determining Whether Company is Diabee for an Injury Caused by Defective Brake.
    If, in such action, the evidence showed that the deceased did not know of such defect, then it was the province of the jrrry to find from the evidence whether, under tho said rule of such company, he was negligent in not knowing that the defect existed, and, if the jury found that he was not negligent in that respect, then it was for them to determine whether the deceased at the time of the accident was exercising ordinary care; for his safety.
    6. Nature or the Rute as to Burden of Proof in Cases of Contributory Negligence.
    The rule laid down by the courts in regard to the burden of proof as to contributory' negligence is a peculiar one, and should not be extended, but strictly confined within, the actual limits of its true application.
    7. Duty of the Court as to Determining on Whom the Burden of Proof Rests.
    In such action it is the duty of the court to determine for itself whether there was any evidence raising the presumption of contributory negligence, so as to cast the burden-of proof to rebut and remove such presumption on the plaintiff; and it is error for the-court to leave that to be determined by the jury.
   I/AUBIE, J.

The case of the Pittsburg and Western Railway company against Sarah Ackworth is a proceeding in error to reverse a judgment rendered in favor of the defendant in error against the plaintiff in error in the court below in an action brought to recover damages for an accident to the husband by the defendant in error, which occurred at New Castle Junction yard in the state of Pennsylvania, under contract of service made, and to be fully performed in that state,, and under a statute of that state confining a right of action upon a widow. In this large and voluminous record, very many exceptions on the part of the plaintiff in error are pointed out to us, and claims made and elaborately argued as to their erroneous character.

We have carefully read all of this record, and have gone over all of the points, of error claimed, and we find no difficulty, save with one, and with that one exception will I deal in this opinion, and that is as to the question of contributory-negligence on the part of the decedent in causing or contributing to produce the-injuries which resulted in his death. This question involves a consideration of the basis of the action- — the negligence of the defendant upon which it is claimed the plaintiff below was entitled to recover. The negligence claimed, consisted in having in the train a car with a defective brake ; that it had no nut upon the head of the brake shaft to hold the wheel solid on to the shaft, that the-wheel lay. loosely upon the top of the shaft, and-that it .was in a dangerous and unfit condition for use, and was known or ought to have been known to the-defendant that it was so. That, shortly, is the basis of the action- — the negligent act claimed on the part of the defendant, which it is urged would entitle the-plaintiff to recover, if proved.

The second proposition that is necessary to consider in disposing of this-point is as to the duty of the decedent. He was acting in the dual capacity of' conductor of a passenger train which ran from the Junction to New Castle, some-three miles and back, and as a boss of a shifting gang in the yard, and the gang consisted of himself, an engineer, fireman and two braketnen who run with him and were under his orders on the passenger train. Upon the occasion in question, it is evident he was acting in the capacity of a brakeman of this crew. Although the boss, he assisted in doing work and used the brakes and performed other services in the yard in the shifting of cars, the same as if he had been a brakeman, and frequently used the brakes of the cars and went upon the cars for the purpose of setting the brakes. He was to perform these duties under the-rules oí his company, and one of these rules is especially involved in this inquiry and needs to be examined. Rule 98 on the back of the time schedule No. 10, which was the schedule that was then in force and of which, it was shown, he-had possession of a copy, and which it was his duty to know, reads as follows “ Sufficient time is allowed and may be taken by employees in all cases, to make-required examination. Coupling by hand is positively forbidden, and all employees engaged in such work are required to provide themselves with a stick for that, purpose. Brakes must be examined before attempting to use them, and those having occasion to use them must know their condition and take no risk. All such cars must be reported to superintendent and dispatchers.” This rule had been in force for a long time and it must be presumed that he had knowledge of it. His duty, therefore, is to be measured somewhat by the extent and application of this rule, because it was the use of a brake such as has been described that produced his death — he was on the' car -using the brake and the wheel came off and threw him underneath the cars and he was killed. While his duty must be measured with reference to the rules of the company, and especially of this rule No. 98, yet we do not mean to say that its letter must have been complied with. It could not be literally complied with in the full sense of the term, or of the words. A brakeman upon a moving train could not, nor would any company permit him, to stop the train and take time to carefully examine every brake upon it, and without doing so it would be utterly impossible for him to fulfill the letter of this rule. He must not only examine, but he must know its condition, not any particular part of the brake, but the brake as a whole, and a rule like this can not be enforced against an employee according to its letter; but there is a right of subordination to the rules of the company, which the company has the right to expect, and that is a reasonable compliance with the rules so far as the business of the company permits, and so far as the company furnishes the opportunity for examination. The brakeman undoubtedly would have a much better opportunity in the yard when merely switching cars, to examine brakes tfian he would out on the road, and, so far as the circumstances of the case and the occasion would, permit, Ackworth was obliged to obey this rule. He was required to give reasonable attention to it and a reasonable compliance with its requirements, measured solely by the time and the occasion. Now, there is no dispute but what the nut was off and had been off, as both parties claim, for a long time, and there is no dispute but what that caused decedent’s death, for he took hold of the brake to stop the car and wrenching upon it the.wheel came off and he fell by the force of his own action upon the track underneath the wheels and was killed. The presumption is that he did his duty and that he knew of the defective character of this brake. This, therefore, naturally threw the burden of proof upon the plaintiff to show that he did not know of the defect, or if he did that he was not negligent in using the brake. The plaintiff alleged knowledge upon the part of the company of the delect, and that the decedent did not know it, and this was the only issue between the parties upon this question. On that issue the court charged the jury that if the decedent knew the condition of the brake and knowingly used it he could not recover, following the case of the Coal and Car Co. v. Norman, in the 49th Ohio State, cited by plaintiff in error. That case is a peculiar one. The doctrine in that case has been declared by some of the courts that have followed it, to be, that such a defect — the defect in machinery or having to work in an unduly dangerous or extra hazardous place — was one of the risks which the servant assumed under his contract, and it has been wrongly placed upon that doctrine. They confound the distinction between contributory negligence and the risk which the employee takes when he enters the master’s service by reason ol his contract of service. By his contract of service he assumes only the ordinary and usual dangers of such an employment. If the master should run his business with an appliance that was fatally defective, lor instance — not in the usual course of such business — the servant, by his contract of employment would not- take upon himself the risks incident to such character of appliance, unless he actually had knowledge of it at the time. It is not the ordinary dangers of the business as his master runs it that he assumes under his contract, but the ordinary and usual dangers and risks of such a business, as generally conducted, and the risks of the defective condition of the implements and apparatus furnished by the employer for his work of which he has knowledge. This extends therefore to the condition only of the appliance at the time he enters the service. Its subsequent defects — defects occurring subsequently in the appliance — is not one of the risks which he assumes by virtue of his contract. The use of appliances, or apparatus, which .subsequently to his entering the service have become defective, will not defeat his recovery on the ground that it was a risk the servant assumed by Ills -contract of service. The employer must look co some other orincinle of law iv. a case like that to defeat recovery, and that principle is contributory negligence, and that is a question for the jury under all of the evidence in the case.

The syllabus, in Coal and Car Co. v. Norman, siipra, is as follows: “ In an action by a servant against his master for an injury resulting from the negligence of the latter in furnishing appliances or in caring for the premises where the work is to be done, the plaintiff must aver want of knowledge on his part of the defects causing the injury; or that, having such knowledge, he informed the master, and continued in his employment upon a promise, express or implied, to remedy the defects; an averment that the injury occurred without fault on his part is not sufficient.” This applies equally to the appliances of the business and to the place where the work is to be performed; but the decision is to be considered with reference to the facts as they appeared from the petition demurred to, to wit: that if the plaintiff knew of the defect, he must have known that it would be dangerous to him, and one against which he could not protect himself by the exercise of ordinary care in the performance of his work. In such a case, continuing to work without objection would bar recovery, not because it was a risk assumed by the contract of service, but because, as appears in the opinion, he would be guilty of contributory negligence. I,et me illustrate by reference to Railroad v. Fitzpatrick, 31st Ohio State, 479—the well known turntable case— where the question came up as to the knowledge of the servant, who was working the turntable by a crank, of the danger. The turntable was adjacent to the wood-yard track, and when first constructed they were sufficiently far apart to allow the turning of an engine on the turntable and the passage of an engine upon the wood-yard track. But the company made larger engines, and after a wThile the great majority of the engines were so large that when upon the turntable, the pilot would extend over and across the wood-yard track; that there was danger continually of collision between engines passing upon the wood-yard track and those turned upon the turntable, and sixty or more engines were turned daily on the turntable, and many more passed daily upon the wood-yard track. Fitzpatrick was working the crank on the turntable and admitted that he had knowledge of this danger of collision, and that caused his injury. Now the court said in that case, whether the plaintiff was guilty of contributory negligence was a question to be left to the jury. Judge Gilmore, in delivering the opinion, . said “he was not a skilled mechanic and might not know the effect of two such forces coming together, and although he knew all of the dangers of the collision ■occurring sixty times a day, yet he might not have known that it would have been dangerous to him and it was a proper thing to go to the jury.” Thus declaring that the servant must not only know of the defect, but that it may produce injury to him, that it may be dangerous to him, he must appreciate the danger — the question being whether he was guilty of contributory negligence, uoder all the •circumstances of the case.

In Railway Company v. Murphy, 50th Ohio State, a track repairer was out with a gang upon the track, and was engaged stooping over the rails in fastening the rails with bolts, when a train came along, ran over him and injured him. All discovered the approach of the train but he, and the particular charge of negligence against the company was that it had not provided means for his reasonable safety in that it had not provided rules for the giving of signals of the approach of a train to its trackmen, either by whistle, bell or otherwise, and Fad not provided a watchman to guard the track repairers against danger under those circumstances, or warn them of the approach of danger. The servant had taken no care for himself. He had made no complaints to the company that the place was unusually dangerous by reason of the absence of such rules, or of such watchman, and yet, with all the knowledge he must be presumed to have had, in absence of evidence to the contrary, of his position and its surrounding danger, the court say the whole question is one of contributory negligence to be left under proper instructions to the jury. It would seem, therefore, that continuing in the service with a knowledge of the defect, or danger, upon the part of the servant, is not always an absolute bar to recovery; this court heretofore ha¡ had occasion to express the opinion, that when the servant, after entering the service, acquires a knowledge of a defect in the apparatus, or appliances of the master, of such a character that ordinary care in the performance of his duties by the servant, in view thereof, would protect him from injury therefrom; 01 which was not so obviously and immediately dangerous, but that prudent met would continue in the service, then continuing in such service would not con stitute negligence per se; and that the exegencies of the service, at the time o: the injury, might excuse him for a momentary forgetfulness of the danger, which would be for the jury to determine. See also Whar. on Neg., secs. 214, 218, 219. Bea. on Con. Neg., sec. 140 and notes on p. 373

In this case, however, the allegations were that the defendant company knew of the defective condition of this brake, or ought to have known it, and that the decedent did not, and that he was injured without fault on his part. There was no admission that he did know, with a plea of matters of excuse for using it with that knowledge, and it would seem, therefore, that if the evidence was that he did have knowledge, that would end the case, and the issue would be found against the plaintiff. If, however, the jury should find that he did not know, then what ? Then the question would be, Was he negligent in not knowing it under the rules of the company ? And if he was then that would end the case. And again, if the jury should find that he was not negligent inn ot knowing the defect in the brake, then what ? Then the question would be whether he at the time exercised ordinary care for his own safety.

Bet us come now to the testimony in the case on the question of his contributory negligence under the issue as we find it. I have said that the presumption is that he inspected the brake; that he performed his duty under the rules of the company and knew its condition. Was it shown that he actually did not know its condition ? The plaintiff below depended for proof of all the facts upon the testimony of one William Robertson ; and he was the only witness produced by the plaintiff below who saw or knew anything of the circumstance, how it happened, how it occurred. As introduced by the plaintiff below his testimony was taken from a bill of exceptions of the case tried in 1892. There seems to have been an agreement between counsel that the testimony of non-resident witnesses, which had been taken in the former trial of the case, should be read to the jury as depositions of the witnesses, and in this way a large part of the testimony went to the jury.

The plaintiff read this testimony of Robertson, as testified to by him in 1892, and he testified in substance that he was at the yard at the time of this occurrence, and that he saw Ackworth at the switch, throwing the switch, and that as cars came up those that were to be shifted were cut off; that he got on a car, took hold of the brake, attempted to use it, the wheel came off in his hands and he. fell in front of the car and'was run over and killed. That in short was his testimony.

The defendant introduced testimony of the same witness, Robertson, given at a later period of time, by the plaintiff at a trial in 1894, May term, 1894, for the purpose of contradicting him,.and in that he makes such an exhibition of himself, in connection with his former testimony, that it is utterly impossible to see how a jury could place the slightest reliance upon his testimony. In this later examination he testified that he saw Ackworth about the switch, and saw him attempt to get on the car, to catch hold of the hand-hold, and that he missed it and fell under the car and was run over; that he saw him in front of the car on the track, that he saw him jump up to catch hold of the brake-wheel and he fell ofi and went down under the car, that while he saw him jump at the hand-hold, he didn’t catch hold of it, and he didn’t get on the car, and that he didn’t catch hold of the hand-hold, but saw him jump at it but he missed it and went under the car. To excuse his contradictions on this important point, counsel for plaintiff below wanted to prove, as was stated, that at the time he gave his second testimony he was intoxicated- but the court rejected it, and counsel before us, in argument, urged that the court ought to have permitted him to show that, at the second time when the witness was called, he was badly intoxicated, as an excuse for these contradictions. I cannot see how it would have benefited the plaintiff unless we discredit the old adage, In vino veritas. But, at all events) neither of his accounts of the accident were true. Robertson also testified that he was at that time in the service of the defendant company, running on a local freight from New Castle to Allegheny and back, and that he was down at the yard that Saturday afternoon because he had missed his train that morning, and that he wanted to get the train to go to Allegheny so as to return on the return trip which would not be until Monday, as his train didn’t run on Sunday, and he says he did go to Alie-' gheny that night; and the man, Moore, whom plaintiff produced on the second trial, says also they went to Allegheny that night. Yet in the latter trial Robertson swears he did not go to Allegheny that night, staid in New Castle, and went the next afternoon, that he was at work for the Pittsburg and Western on a local, and that the local left. New Castle %t 5:30 p. m. and that his trains were Nos. 41 and 42, but they could not be found on the schedule, and there was only one local, and that was No. 27, and it left at 5:30 in the morning. The other testimony in the case — all of which would have to be fabricated if not true — showed that he was not in the employ of the railroad company at th'at time, the accident having occurred on the 6th of July and that he was not in its employ until the 17th. The conductor of the local swears that he never worked for him, that he was running the local during the month up until the 27th of July, and produced his time book of that month, and the original is in the record, and it shows four or five names, but Robertson is not among the number, and they produced also the time card showing when Robertson did work, and the number of days employed, and that he made $>25.45; and they show his receipt for that amount at the end of the month, so that it is impossible to conceive how a jury could have placed any reliance whatever upon that man’s testimony.

All the other witnesses in the case testify that Ackworth was not at the switch, but was out on this car all the time standing by this brake; that Newell threw the switch, if I remember the name correctly; that Ackworth remained on the car and did not get off that car until he fell off and was killed, and that going up and coming back past the switch he remained on the car, standing upright alongside of that brake, and that he had absolutely used it once going up on the train, but when he undertook to use it again the wheel came off and he went under the car. Rook at it for a moment and consider it — the character of the defect — it was the nut off the top of the brake-shaft which came up in the center of the wheel — which was perhaps a foot in diameter — that he took hold of the wheel, wrenched around and it came off the brake. As he stood his head would be above the wheel, and naturally in taking hold of the wheel he would look at it, and right there between his hands was that defect visible. There can be no inference except that had he performed his duty to the extent that the time and circumstances would permit, by a mere glance of the eye, he would have defected the defect, so that the evidence supported the presumption that he knew of the defect and used the brake voluntarily with that knowledge. If he looked at the brake-wheel at all he could not have but seen it. We are unable to conceive how the jury could have found otherwise, unless the charge may have misled or confused them as to the issue and as to the burden of proof. Part of it is as follows: “ Upon the question of negligence upon the part of the defendant and as to that negligence being the proximate cause of the injury to Ackworth, and as to want of knowledge of the defect on the part of Ackworth, the burden of proof is upon the plaintiff, and this makes, it incumbent upon her to produce a preponderance of the testimony in support of each of these propositions, and unless that preponderance is produced she is not entitled to a finding in her favor. Upon the question of contributory negligence or the violation of the rules by Ackworth, the burden of proof is upon the defendant, and this makes it incumbent upon the defendant to produce a preponderance of the testimony that Ack-worth did not act with ordinary care or was acting in violation of the rules upoi that occasion and that this failure to so act or the violation of the rules con tributed to produce or cause his injuries, unless the testimony offered by tin plaintiff in this case raises the presumption of contributory negligence or a vio lation of the rules on the part of Ackworth, in which event the burden of proo would then rest upon the plaintiff to rebut and remove this presumption and' t( produce a preponderance of the evidence that contributory negligence did no exist, and that the rules of the defendant were being observed by him at tha time.”

Jones & Anderson, Attorneys for Plaintiff.

G. F, Arrel> F. Jacobs, Attorneys for Defendant.

Notwithstanding the evidence as I have disclosed it, notwithstanding th« presumption was that he had obeyed the rules and knew of the defect, and notwithstanding the ground of recovery alleged in the petition was that the decedenl did not know of the defect, which involved an admission of a violation or non-ob servance of the rules of the company in evidence in the case, the learned judge told the jury that upon the question of the contributory negligence, or violatior of the rules, by Ackworth, the burden of proof was upon the defendant, unless the testimony of the plaintiff raised a contrary presumption.

We agree with counsel this was a mistake upon the part of the court which had its effect upon the jury in bringing the verdict. The court was plainly attempting to follow the ordinary rule laid down in regard to the burden of proof upon contributory negligence as defined by the court of last resort It is a peculiar rule and one which ought not to be extended, but strictly confined within the actual limits of its true application.

We admit it seems a good deal as if the court, in turning "over to the jury the question of the burden of proof, abdicates not only its powers, but its duties and its obligations toward the parties; that the court ought to bo able to judge upon whom the burden of proof rests, and to determine for itself whether there was evidence raising the presumption of negligence, which would cast the burden of proof upon the plaintiff; that it is as capable of doing that as the jury; just as capable of doing that as it is to determine whether there is sufficient evidence of negligence to carry the case to the jury, or whether there is sufficient evidence of the loss of a paper to permit verbal evidence of its contents to go to the jury, and if it were an original question I should think it ought not to abdicate its duty in that regard in one case any more than the other. The rule is different, however, to the extent named, but it should not, and we think does not, apply where the only reasonable presumption arising from the plaintiff’s testimony is one of negligence. It is only in a doubtful case, that the question should be submitted to the jury.

It is clear that the evidence of the plaintiff did raise such presumption of negligence, and that the burden of proof was upon the plaintiff. In allowing the jury to determine that question, and in permitting the jury to say that there was no evidence in the case on the part of the plaintiff that raised a presumption of the decedent’s negligence therefor, and that the burden of proof rested upon defendant, we think was misleading, and contributed to bring an unfortunate verdict, and on s that is not sustained by the evidence in the case, and the case must be reversed.  