
    Gamble, Admr., v. The Akron, Bedford & Cleveland Railroad Company.
    
      -Conductor on electric car — Exchanges places with motorman— Fatally injured — Question of contributory negligence — Supreme Court will review reversal of circuit court, when— Supreme Court practice.
    
    1. Where it affirmatively appears that the circuit court reversed the judgment of the court of common pleas for errors of law only, its-judgment of reversal will be reviewed by the Supreme Court. Wetzell v. Richcreek, 53 Ohio St., 62, approved and followed,
    :2. Where a conductor on an electric car, who is also a competent motorman, temporarily exchanged places with the motorman, there being at the time no apparent danger of accident, to enable the latter to eat his dinner, and while the conductor was running the car a collision occurred with a snowplow running around a curve in the opposite direction, solely through the fault of the defendant’s train dispatcher, fatally injuring the conductor, the latter is not chargeable with contributory negligence merely by being in the place of the motorman and standing at his post while endeavoring to avert the impending collision.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Summit county.
    The plaintiff in error brought suit in the court of •common pleas to recover for the death of Justus H. Walborn, who was a conductor on the defendant’s railroad. On the day of his death the train dispatcher -of the defendant ordered him to take his car and proceed northward from Akron to Vier’s switch. The train dispatcher had forgotten, when he gave this •order, that he had already ordered a snow plow to proceed southward from Bedford station to Harlow’s •siding, a point several miles south of Vier’s switch. A collision resulted, and Walborn was fatally injured. After his car left the power house on its trip northward, the decedent took up the fares of passengers and then requesting the motorman to eat his dinner at the rear end of the car and watch the trolley in the meanwhile, took charge of the controller and ran the car until the motorman had finished eating. About this time tbe motorman went forward and stood near the entrance of tbe vestibule, from two to five minutes, when tbe snow plow appeared, coming in tbe opposite direction around tbe curve. Tbe motorman retreated from his position and tbe decedent stood at bis post and at once reversed the car when tbe circuit-breaker overhead flew1' out. He replaced it and held it in its place with one band and continued to keep tbe car reversed until tbe collision occcurred.
    Tbe trial in tbe court of common pleas resulted in a verdict for tbe plaintiff. Motion for a new trial was overruled and judgment entered upon tbe verdict. Tbe circuit court reversed tbe judgment of tbe court of common pleas, upon tbe following findings of error:
    1. That under tbe evidence in this case, it was tbe duty of tbe court to have said absolutely to tbe jury, that tbe rules printed in tbe red book, so far as they were introduced in evidence before tbe jury, and also “Exhibit 2” appearing in tbe bill of exceptions, bearing date October 4, 1896, wrere rules of the Akron, Bedford & Cleveland Railroad Company governing tbe conduct and specifying tbe duties of motormen and of conductors, in running and operating said company’s cars, and the court erred in submitting to tbe jury the question of wdiether or not those were rules of the defendant company.
    2. Under tbe evidence in this case, it was tbe duty of tbe trial court to say to tbe jury that there was no evidence in the case tending to show any abrogation or waiver of the said rules, and the court erred in omitting to so charge the jury.
    3. Said court of common pleas erred in charging the jury that it should determine whether or not the said Akron, Bedford & Cleveland Railroad Company had rules.
    4. Said court of common pleas erred in charging the jury that there was evidence tending to show that the rules of the company had been abrogated and strict performance thereof waived, and erred in submitting that question to the jury.
    5. Said court of common pleas erred in submitting to the jury the question as to what were the rules of said The Akron, Bedford & Cleveland Railroad Company.
    6. The court of common pleas charged the jury as follows: “Did the deceased know or have the opportunity to know or be informed as to the nature and extent and character of the rules?” This was error and under the evidence the court should have charged that said Walborn did know of the existence of said rules and their contents.
    7. Said court of common pleas erred in submitting to the jury the question as to whether Justus H. Walborn, decedent, violated the rules of the company.
    8. Said court of common pleas erred in submitting to the jury the following question: “Did the decedent at the time, and on the day of this accident, violate these rules, or any of them?” Whereas, under the evidence in said case, it was the duty of the court to say to the jury that the deceased did go into the vestibule of the car, and did violate the rules of the company in respect thereto.
    
      9. Said court of common pleas erred in submitting to the jury the following question: “Did such violation on his part, if it is shown that the rule was violated, help to produce or proximately cause the injuries which he received on that day?” Whereas, it was the duty of the court to say to the said jury that the vestibule of said car was a place of known greater danger than the conductor’s post of duty, in the rear of the car, as fixed by the rules of the company, and that his voluntary act of going into said vestibule and taking upon himself the management of the motor, was an act of negligence upon his part, contributing to the injuries sustained by him, which resulted in his death.
    10. Said court of common pleas erred in refusing to charge the jury as requested by the defendant below in its requests Nos. 2, 3, 4, 5, 6, 7, 8, 9,10, and 11, respectively, appearing in the bill of exceptions.
    11. Said court of common pleas erred in adding the modifications to defendant’s requests Nos. 3, 4, 5, 6, 7, and 8, respectively, as appears in the bill of exceptions.
    12. Said court of common pleas erred in charging the jury by giving requests Nos. 1 and 3 of plaintiff below.
    13. The entire charge of the court below was misleading in that it necessarily would lead the jury to the proposition that if the decedent, when he was in the vestibule and running the motor, did nothing to bring the cars together, and was not an active agent in the collision, that the plaintiff might recover.
    14. Said court erred in its charge to the jury in defining negligence as follows:
    “It consists of some act or omission of duty that in the natural and ordinary course of events might cause all the injury complained of,” and in saying to the jury
    “It is a question of fact for you to determine from all the evidence and circumstances of the case, whether Walborn’s conduct on the day and at the time of the occurrence of this injury constituted negligence or the want of ordinary care, as I have defined that.”
    
      Grant & Bieber and Rowley & Bradley, for plaintiff in error.
    That a person who, when a collision is imminent, does not desert a post of danger, when he might do so seasonably and so secure his own safety, but remains, and is injured in his effort to save life, is not necessarily chargeable with contributory negligence, is a position sustained by a great weight of authority. Central R. R. Co. v. Crosby, 74 Ga., 737; Kelly v. Railway Co., 50 Wis., 381; Knapp v. Railway Co., 65 Iowa, 91; Ransier v. Railway Co., 32 Minn., 331; Fickett v. Railway Co., 39 Atl., 996; Weick v. Lander, 75 Ill., 93.
    In these and many other cases the question is left to the jury as a matter of fact.
    In the proposition which we are now maintaining, there is the additional element of the injured person having left a place of safety. The strong probability, amounting almost to a certainty in this case, is that if he had remained in the rear of the car he would have met with an injury all the same, because the conduct of the motorman in the face of danger shows what was to be expected from him had the latter remained in charge of the motive power of the car. But whether this is so or not, we still contend for the principles that it was the right and duty of the deceased to leave a place of safety and to expose his life to hazard under the circumstances disclosed by the record here. Steel Company v. Marney, 42 Atl., 60, 5 Am. Neg. Rec., 159; Bailey on Master’s Liability, p. 418; Railroad Co. v. Reaney, 42 Md., 130; Gibney v. State, 137 N. Y., 1, 33 N. E. Rep., 142; Eckert v. Railroad Co., 43 N. Y., 502; Pennsylvania Co. v. Lagendorf, 48 Ohio St., 316, 28 N. E. Rep., 172; Linnehan v. Sampson, 126 Mass., 506; Pennsylvania Co. v. Roney, 89 Ind., 453; Donahoe v. Railway Co., 83 Mo., 563; Condiff v. Railroad Co., 45 Kan., 260, 25 Pac. Rep., 562; Cottrill v. Railway Co., 47 Wis., 634, 3 N. W. Rep., 376; Peyton v. Railway Co., 41 La. Ann., 862, 6 Southern Rep., 690; Beach on Contributory Neg., Secs. 24, 25, 26, 34 and 373; Haley v. Earle, 30 N. Y., 208; Railway Co. v. Lyons, 4 Am. Neg. Rep., 175; Shearman and Redfield on Neg., 207 (b.); Smith, Admx., v. The Powell Co., 23 Bull., 437, 10 Dec. (Re.) 799; Railway v. Bondron, 2 Am. and Eng. R. R. Cases, 30; Wharton on Neg., 303 and 323; Railway Co. v. Krayenbuhl, 67 N. W., 447; Ford v. Railway Co., 110 Mass., 240; Horan v. Railway Co., 56 N. W., 507; Reed v. Railway Co., 72 Iowa, 170; White v. Railway Co., 16 Southern Rep., 248; Locke v. Railway Co., 46 Iowa, 109; Gates v. Railway Co., 39 Iowa, 45; Marshall (or Brydon) v. Stewart, 2 Macq. H. L. Cas., 30; Railway Co. v. Watson, 90 Ala., 68; Railway Co. v. Pearson, 12 So., 176; Railway Co. v. Graham, 10 So., 283; Railway Co. v. Roney, 89 Ind., 453.
    
      Ford, Snyder, Henry é McGrow and Allen & Cobbs, for defendant in error.
    On the merits of the case the decision of the circuit court rests upon the rule laid down in Wolsey v. Railway Co., 33 Ohio St., 227.
    
      If the employe has suffered injury brought about by a violation of the plain instructions of his principal, he cannot hold his principal liable therefor. Railway Co. v. Eis, 2 C. C., 3 and 5, 1 Circ. Dec., 329; Railway Co. v. Ackworth, 10 C. C., 583, 6 Circ. Dec., 622; Johnson v. Railway Co., 11 C. C., 553, 5 Circ. Dec., 290; Railway Co. v. Litz, 18 C. C., 653, 7 Circ. Dec., 282.
    Plaintiff in error, however, seeks to avoid the inference of contributory negligence, flowing from his decedent’s violation of rules, by recourse to three several doctrines, approved by this court, viz.:
    1. “When a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present.” Penn R. R. Co. v. Snyder, 55 Ohio St., 342.
    2. “When the negligence of the defendant in a suit upon such ground of action is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission not occurring at the time of the injury, the action is maintainable.” Kerwhacker v. Railway Co., 3 Ohio St., 172.
    3. “It is not negligence per se for one to voluntarily risk his own safety or life in attempting to rescue another from impending danger.” Penn. Co. v. Langendorf, 48 Ohio St., 316.
    The first of these contentions affords its own refutation. The rule is expressly qualified by the use of the phrase “without his fault,” and it cannot be contended that the decedent in the case at bar was acting as motorman in the front vestibule, a post of known greater.danger, “without his fault.” He was in the continuous voluntary violation of an express provision of the rules and regulations so long as he remained in thgt place. The train dispatcher’s error was irrevocable long before the cars came in sight of one another. His negligence was complete the moment the order was given, and beyond recall. But decedent’s negligent conduct persisted thereafter. Of course, time is not ordinarily the sole test of proximate cause. But where defendant’s negligence competes with plaintiff’s negligence, in determining which is the more proximate cause, in cases like the one at bar, time is the approved test. Railway Co. v. Kassen, 49 Ohio St., 230; Railway Co. v. Krichbaum, 24 Ohio St., 119.
    (1) That the violation of a rule of the defendant company which is known, or should be known to an employe of said company, constitutes such negligence on the part of such employe as will bar a recovery.
    (2) But even in the absence of such rule, or any violation thereof, an employe who voluntarily assumes a post of danger outside of the scope of his duties, and as a consequence is injured, he cannot recover for such injuries. Thompson on Negligence, Vol. 2, p. 1017; Brown v. Byroads. 47 Ind., 435.
    In conclusion, we submit the following additional authorities: Railroad Co. v. Langdon, 92 Pa. St., 21; O’Neill v. Railway Co., 45 Ia., 546; Railway Co. v. Wilson, Admr., 88 Tenn., 316, 12 S. W., 720; Abend v. Railway Co., 111 Ill., 202; Railway Co. v. Wallace, 76 Tex., 636; Beyer v. Railway Co. (Ala.), 21 Southern Rep., 952; Wilcox v. Railway Co. (Tex.), 33 S. W., 379; Railway Co. v. Reilly, 40 Ill. Appeals, 416; Downey v. Railway Co., 28 W. Va., 732; Torrey v. Railway Co., 147 Mass., 412; McGucken v. Railway Co., 77 Hun., 69; Thornton v. Tuley, 41 Mo. App., 432; Railway Co. v. Miles, 40 Ark., 298.
    
      The rule enunciated in these cases is protective of the soundest public policy; it conserves the interest both of employe and general public, in holding the employe of a carrier to his post of duty, and to the careful observance and obedience to, those regulations which are promulgated for the benefit and safety of those who travel and of the employe himself.
   Davis, J.

It is said that this is a case in which one ground of reversal may have been that the judgment was against the evidence; and that therefore the judgment of the circuit court should not be reviewed in this court. Dougherty v. Railway Co., 56 Ohio St., 725. Whatever the circuit court might have done, it is very clear that it did not reverse the judgment of the common pleas on the weight of the evidence; for every one of the fourteen findings of error relates, to the charge to the jury, or that which it is claimed should have been given in charge to the jury, in regard to the alleged violation of the rules of the company. Inasmuch as the circuit court must pass on all errors assigned, it must be presumed that the court found no errors except those specified. Hence we are not justified in assuming that considerations of the weight of the evidence entered into the judgment of reversal. Wetzell v. Richcreek, 53 Ohio St., 62.

We do not adopt the theory which seems to have prevailed in the circuit court. Rule 3, for conductors, merely defines the regular position of the conductor when not collecting fares. It does not prohibit him from temporarily occupying any other position. By general rules. 4 and li, he has full charge of the car while in service; and this implies that he may be anywhere in the car while in the performance of duty. In an emergency, such as, for example, an accident to, or sudden illness of, the motorman, he might be in the vestibule in the place of the motorman; and if competent to do so, as it appears that Walborn was, might act as motorman. So far as appears here, there was no violation of either the letter or the spirit, of these rules, construed together, when Walborn temporarily exchanged places with the motorman in order that the latter might eat his dinner. It does not appear that the company’s property, or the safety of passengers, was in any way imperiled by this arrangement; and there was no occasion to apprehend an emergency which would call for them to be in their respective places. It would seem that in this instance the conductor exercised his judgment and authority, under the rules, reasonably and prudently. The case is not, therefore, akin to those cases in which a servant voluntarily and needlessly, and not in the performance of duty to the master, places himself in a position of greater peril.

But, if it be conceded that Walborn was in a prohibited position at the time he was fatally injured, it seems to us that the same result must be reached. The blunder of the train dispatcher put everybody on the car in peril. His act was the sole and proximate cause of the collision. Not a thing that Walborn did contributed to bring about the collision; and he heroically died at his post in trying to prevent it. Nothing is alleged against him, except that he was in the most dangerous position, where all were in common danger, without the fault of any. Under such circumstances, it is nothing short of absurdity to contend that because he was killed instead of another, or possibly all, the company should escape all liability for its wrong. But it is argued that he should have deserted Ms temporary post and have gone back to his proper position; in other words, that he was negligent in remaining. But if he had run away without attempting to reverse, and the other people on the car had been killed or mangled, would any court acquit the company of negligence in that respect? If the contention of counsel is correct, it involves the contradiction that Walborn was negligent in remaining, and would have likewise been negligent if he ran away. Who among us is sufficient for the decision of such things in an emergency? We are not willing to accept it as the law that a motor engineer, or a locomotive engineer, is guilty of contributory negligence merely because life remains in his dangerous position and continues his efforts to avert calamity from the passengers behind him. Beach on Cont. Neg., Sec. 42. And Walborn was, for the time being, the motor engineer of that car, and as such responsible for the safety of the passengers being carried therein.

We find no prejudicial error in the record. It was hardly necessary to have bothered with the elaborate charge and requests to charge, in this case. Upon the evidence in the case, the court would have been justified in directing a verdict for the plaintiff.

The judgment of the circuit court is reversed and that of the common pleas affirmed.  