
    RAILWAYS — NEGLIGENCE.
    [Summit (8th) Circuit Court,
    April Term, 1902.]
    Caldwell, Marvin and Hale, JJ,
    Erie Railroad Co. et al. v. Kate McCormick, Admx., etc.
    1. Speed Ordinance Admissible in Action for Negligence Against Railway, When.
    Where, in an action against a railway company for the wrongful death of one < of its employes, the negligence charged being that the train which killed the deceased was run at a speed so excessive (forty miles an hour) as in itself to constitute negligence, an ordinance of the city within whose limits the accident occurred, limiting the speed of all railway trains to six miles per hour, is admissible in evidence.
    2. Track Walker and Engineer not Fellow Servants.
    Under Sec. 336Ó-22 Rev. Stat., defining the terms “ superior officer ” and “ fellow servant” a track walker, notwithstanding he is alone upon the railway track and has sole power, control and direction as to manner and time of pursuing his duties, and power to flag trains when necessary, is not the fellow servant of the engineer of an approaching train, so as to preclude recovery for injuries resulting from the negligence of the latter.
    8. Contributory Negligence.
    A track walker, knowing the rate of speed at which trains habitually run over a certain division of a railway and the time at which they pass a bridge included therein, is bound to take notice thereof and govern himself accordingly and has no right to presume that any ol such trains will not exceed the speed limit provided by an ordinance of the city in which such bridge is situated; and where a person so employed, at about the time a train is due, without making any effort to ascertain whether or not a train is within sight or hearing, goes upon such bridge and is killed he is guilty of contributory negligence.
    
      •4. Recovery for Negligence of Engineer Notwithstanding Contributory Negligence of Deceased.
    The engineer of a railroad train running at a high rate of speed, who sees a man upon a bridge over which his train is to pass, 800 feet ahead, and who makes no effort to slacken the speed of the train, when by proper effort he could have prevented it from running the man down, is guilty of negligence which will render the railroad company liable for the death of such man, in case the train runs upon and kills him, provided the deceased could not have escaped after he knew of his danger. The fact that the deceased was a track walker of the railroad company and was negligent in going upon the bridge will not prevent such recovery.
    6. Remittitur Ordered.
    A verdict of $5,200 for the death by wrongful act of a track walker earning one dollar and twenty-five cents per day is excessive and unless remitted in this case to $4,000 judgment will be reversed.
    Tibbals & Frank, for plaintiff in error.
    E. F. Voris and A. J. Wilhelm, for defendant in error.
    Error to the court of common pleas of Summit county.
   MARVIN, J.

The case grew out of this state ot facts: On the morning of Christmas day, December 25, 1897, James Thomas McCormick was killed by being struck by a train of the Erie Railroad Company, crossing .a trestle in the northeasterly part of this city (Akron). Katie McCormick was appointed administratrix of the estate/ot the deceased Thomas, and brings suit under the statute authorizing such proceeding to be brought for the benefit of those (the next of kin) who have a right. The trial resulted in a verdict and judgment for the plaintiff below, ■and motion for new trial was made and overruled, and error is brought here to reverse that judgment. A bill of exceptions is filed here containing all the evidence introduced in the court below.

It is complained on the part of the plaintifl in error that the petition fails to state facts sufficient to constitute a cause of action. Without stopping to read from the petition, we hold that the petition does state sufficient facts to constitute a cause of action against the railroad company. Both companies were sued, the Erie and the Nypano, the Erie being a lessee of the other company.

The petition complains of negligence on the part of the railroad company in that it was running its train, which caused the death ot McCormick, at a negligent and improper rate of speed It complains that there was negligence in not giving proper alarm by the ringing of .a bell and the sounding of a whistle. It complains that there was negligence in not checking the speed ot or stopping the train after it was known, or ought to have been known, that the decedent was in a place of danger, where, if the train could not be checked or stopped, he would be killed or seriously (injured. One of the charges of negligence then, as has already been stated, is that the train was being run at a rate of speed too high and such as made it negligence to so run the train.

There was offered in evidence, on the part of the plaintiff below, an ordinance ot this city, which provides that trains shall not run within the city limits at a greater rate of speed than six miles an hour. Objection was made to the introduction of that, and complaint is made that the court .allowed that ordinance to be introduced.

It is urged that on the whole evidence it is perfectly plain that the train habitually ran over that part of the road at about the rate of speed that it was running on the occasion of this accident. The train, as a matter of fact, was running, at the time of this accident, probably at least at forty miles an hour. It is said that it is perfectly clear that this was the usual rate of speed at that place, and that the decedent knew it to be so. But remembering that one of the charges of negligence is, without reference to what excuse the company had as against the decedent, or anyone representing him, the running at a higher rate of speed than prudence would allow, running at such a rate as made it negligence, the question as to whether the ordinance should be introduced must be governed by whether it bears upon that question.

The court allowed the ordinance to be introduced in evidence, and on page 144 of the bill, the court explains' to the jury just what weight should be given to the evidence, or rather it explains the question upon which the evidence was admissible, and in so charging the jury quoted almost exactly the language ol Judge Johnson in the case of Meek v. Pennsylvania Co., 38 Ohio St. 632, and that language is quoted with approval by our Supreme Court in the case of Davis v. Guarnieri, 45 Ohio St. 470, 485 [15 N E. Rep. 350; 4 Am. St. Rep. 548]. There was no error in the admission of that ordinance as evidence. And the court, in its charge, properly instructed the jury as to what issue, and only what, that evidence was to be addressed.

There were a number of requests made by the defendant below for charges to be made to the jury. All of the requests made prior to the giving of the charge were given, except the first two.

The first reads, “II you find that on the day ot this injury to McCormick while he was on duty on the delendant’s road as track walker, he had no superior with him, but was alone and sole power, control and direction as to the manner and time of pursuing his duties in his then branch and department of service, and the power ot • flagging trains when necessity required if, then I say to you for that time, and in the operaton of train 5 (which was the train causing the death of McCormick) the engineer of said train was a fellow servant with him, and for the negligence of such engineer, the plaintitl cannot recover in this case, and you should find for the defendants.”

That was refused, and properly refused under Sec. 3365-22 Rev. Stat. Said sub-section reads:

“That in all actions against the railroad company lor personal injury to, or death resulting from personal injury, of any person, while in tne employ of such company, arising from the negligence of such company or any of its officers or employes, it shall be held in addition to the liability now existing by law, that every person in the employ of such company, actually having power or authority to direct or control any other employe of such company, is not the fellow servant, but superior of such other employe, also that every person in the employ of such company having charge or control of employes in any separate branch or department, shall be held to be the superior and not iellow servant of employes in any other branch or department who have no power to direct or control in the branch or department in which they are employed.”

These men were not in the same department of service. McCormick had nobody under him; the engineer did have somebody, the fireman, under him. It is clear the court properly refused to give that charge.

The second is, “If you find that at and before the twentj-fifib day of December, 1897, the day of McCormick’s injury, he had knowledge or means of knowing that train 5 on defendant’s road had a schedule time between Kent and A.kron of 33J- miles per hour, and that said train was habitually run over this division, including the bridge in question, at a rate of thirty-three to forty or more miles per hour, then it became McCormick’s duty in discharging his duties as track walker, to take notice of such speed ol said train, and to act and govern himself according to such rate of speed as said train was actually being run, taking such care ol the road and of himself, in going upon, or refraining from attempting to pass over said bridge, as such circumstances in. relation to such fast rate of speed required, and he would have no right to rely on the rate of speed provided for in the city ordinances admitted in evidence, and in such case I say to you you should disregard the ordinance and the fact that the bridge was within the city limits.”

That was refused. The court, in refusing that, said, except lor the last clause it would probably be proper to give it. But, as has already been said, as to the admissibility of the ordinance on objection made, the court properly admitted it, and without stopping to read what the court said,' the court, in its charge to the jury, did properly instruct them as to the effect of that ordinance, and there was no error in refusing to give the request.

The evidence shows that McCormick was what is called a track walker on the line of the Erie road between Tallmadge and Akron; that he was accustomed to walking over this part of the road daily, perhaps more frequently than once a day; that he was entirely familiar with the manner in which trains were run; that trains habitually ran without regard to the ordinance of the city over this part of the road at a rate of speed in the neighborhood of forty miles an hour; he also knew — it was his business to know — as shown by the rules, he must keep track of the trains — it was his business on this occasion to know that the train was late; it was, as a matter of fact, two or three minutes more than two hours late; it was his business to know that. Doubtless, he did know it. So that he went on to this bridge, for he was walking from toward Tallmadge to Akron, came to the bridge at the east end of it and was walking across toward the west end, and he either knew or it was his business to know, that that train was liable to come at any time. The evidence shows that he was muffled up — his ears were probably muffled, it was a cold morning, as already said, in December; the evidence makes it probable, though not certain, that the bell rang and the whistle was sounded at the Tallmadge road, something like a thousand feet east ot this bridge before it reached that road, perhaps 1500 feet before it reached the road that the whistle blew. This man may not have heard it. It is possible that it did not blow, but the probabilities are very strong that it did, and it seems certain that the man who knew that that train was behind time, whose business it was to know it, and did know it was liable to come at any time, going on to that bridge without unmuffling his ears and trying to ascertain in some way whether that train was coming, was guilty of negligence. We think that the evidence is clear that McCormick was negligent at the time he went onto that bridge, so that if he is entitled to recover it is in spite of that proposition of law that he who contributes by his own negligence to an injury is not entitled to recover for such injury.

What was known about it by the engineer running that train, and did he do that which he ought to have done after he knew, or, if he had exercised reasonable care, ought to have known that this man was in this place of danger ? He says that something like six or eight hundred feet, six hundred feet, at any rate, before the place where the man was struck, he saw him; indeed, it must have been further than that, well up toward the Tallmadge road, he saw McCormick; he says that he didn’t know whether he was on the bridge or not. First, he says he was not, but later on he says that he did not know whether he was on the bridge or not. He says that he saw him; he saw him with such distinctness that he saw there was a wrench over his shoulder; it was not snowing; he says it had been snowing, but it was not then snowing; he saw this man on the bridge; he must have been on the bridge or on the approach at the west end; he was killed at a point further west than the west abutment ot the bridge; he was killed within twelve or fifteen feet of the west end of the approach. He says that he did not thereafter see him, and mentions snow as one of the reasons, but later on he says it was not snowing. The fireman says by reason of there being snow on the ground it flew up around the engine, but the engineer says the wind was blowing from the west, and that the smoke trailed down over the train so that he did not see him when they came round the curve. Possibly he meant to say, although he does not distinctly say so, that the front end of the engine would come within the line of vision between him sitting on the right hand of the engine and McCormick; but he says the smoke trailed down over the engine and over where he was so as to interfere with his seeing. He says, however, that he put on the brake; and sounded the whistle, put on the brake. He does not, in his direct testimony, say that he put on an emergency brake, but he does say later on in his testimony that he did all in his power to stop the train. The fireman says nothing about that, and he nowhere says that there was any checking in the speed of the train at all. If the engineer did not understand that McCormick was in a place of danger when he saw him it is a little difficult to understand why he thought it was necessary to do all in his power to'" stop that train or check it. The two young men who were skating nearby, who saw the train, testify about this accident. One of them, and only one of them, says that there was no checking ot the speed of the train. The other, on cross-examination, was asked it he could tell within fifty feet when he saw it whether it was so checked. He said he thought he could, but he didn’t say anything about whether the speed of the train was checked, but the other man, whose name I don’t recall, says there was no checking at all. It has already been ■said the fireman does not say there was, and nobody says there was except the engineer. The result was that the train was not sufficiently checked, at least, to save this man. The evidence shows, and especially by one witness, who was formerly a conductor and perfectly familiar with that line, that at that place and- at that time the speed of the train could have been very materially reduced in the distance between the place where the engineer saw the deceased and the place where the ■engine struck him.

The court instructed the jury properly, that if McCormick was in ■fault, it he was negligent, no recovery could be had here, unless the engineer could have saved McCormick by exercising that prudence which, under the circumstances, it was his duty to exercise; that prudence which an ordinarily prudent man would e¡xercise under similar circumstances. The court charged the jury properly on that.

The jury must have found, ior we think it is certain the jury found McCormick was negligent, that the engineer is mistaken when he says he put on all the appliances that he could to check the speed. IF he did not think the man was in danger there would be no reason why he should put on all the appliances. We think he did see that the man was in danger, but he reasoned with hitnself he would probably get out of the way, and he did not exercise the prudence that he ought, at least, that it is not clear that the jury was wrong in finding that.

Without commenting upon the other errors complained oi, although each one of them has been carefully considered, we find no error (a majority of the court only hold as the opinion is being announced) except on the question of the measure of damages.

Of course, it is difficult to fix a proper amount of damages, but the damages awarded here are such that the interest on the amount of money awarded here as damages would practically amount to as much as this man was earning. The damages were $5,200. He was earning only $1.25 a day; and we think the jury. must have intended to give such an amount that the interest on it would have amounted to his wages, or practically his wages, overlooking the fact ii he kept on earning■ wages to the end oí his lile, the whole amount would then be gone, whereas if he put out the money he would still have the capital left, and overlooking the true measure of' damages, that it should be a compensation for the pecuniary loss. It is said by some authorities— it is said in Hill on damages, and some cases are cited in support of the proposition that we may take into account, of course, nothing for solace, nothing for’wounded feelings, but the care the parent might exercise lor the benefit of his children, may be considered, but taking that into account, and being most liberal, we think the jury awarded damages greater than should have been awarded. In a case where a man was earning $1.25 a day, there could not have been such a pecuniary loss as would have required $5,200 to compensate, and unless the plaintiff below is prepared to remit $1,200 lrom this amount, and accept $4,000, the case will be reversed. Otherwise it will be affirmed. <  