
    NEGLIGENCE — CHARGE TO JURY.
    [Huron (6th) Circuit Court,
    1901.]
    Haynes, Parker and Mooney, JJ.
    (Mooney, J., sitting in place of Hull, J.)
    Lake Shore and Michigan Southern Railway Co. v. Rose Whidden, Admx., etc.
    1 Rules oe Railway Company Need not be in Writing.
    . Orders to employes in railway shops are not required to be given by written rules; the rule in respect to such companies is not different from that applied to other industries. Hence, in an action for negligence for want of sufficient rules for the protection of employes, it is improper to exclude proof that an oral rule was made, was in existence and was actually communicated to an employe, and which, if followed, might have tended to his safety in the work in which he was engaged.
    2. Choosing Dangerous Method oe Work — Contributory Negligence.
    The fact that a person does not surround himself with all precautions and take the course that in all situations is absolutely free from danger, does not raise a presumption of negligence against him, but where there are two ways of accomplishing a certain work, with reasonable dispatch, one absolutely safe and the other attended with danger, the adoption of the latter raises a presumption of negligence; and to remove this presumption and to show the exercise of ordinary care, the burden is upon the person so choosing.
    8. Rule Applied.
    Where a man thirty-two years of age, of more than ordinary intelligence, employed about a railway company’s shops for more than three years, and for more than a year accustomed to assist in raising tanks from the floors of locomotive tenders, by the aid of lifting jacks, in attempting to reach certain blocking to support the tank, placed his head and arms under such a tank, one end of which he had raised and left supported by a jack only, which slipped and let the tank fall upon his head, causing his death, he was held to have been negligent, and especially where it appeared that by a few steps he could have procured the blocks without danger.
    4. Danger oe Defective Appliance or Condition.
    A person using an appliance, a lifting jack in this case, for several years and frequently, may, in the absence of evidence to the contrary, be fairly presumed to know its weakness, if it has any. The same rule applies to other conditions, such as a floor made slippery by fresh paint, where the person had worked thereon for several hours. In either case the person so employed should be held to have assumed the dangers suggested, particularly where it appears that he had already had instances of the weakness of the appliance and the slippery condition of the floor.
    6. Lack of Causal Connection Between Negligence and Injury.
    The fact that a railway company employed only two men, when it should have employed three (though it is not so held in this case), to accomplish certain work, furnishes no ground for recovery where, from the position in which an employe who is injured placed himself, he would not have escaped injury by reason of the employment of another man or any precaution or warning given at the time by such extra person, inasmuch as there is no causal connection between the alleged negligence and the happening of the injury.
    6. Assumption of Risk of Certain Methods.
    Where a person performed certain work many times with the assistance of one man, he should be held to know the dangers of so doing and by voluntarily attempting to perform the work another time without objection or demand for the assistance of a third person, he cannot recover for an injury caused thereby.
    7. Evidence Necessary"to Remove Such Presumption.
    Evidence to remove a presumption of contributory negligence in an action for personal injuries must be exculpatory; that is, it must show some reason or sustain some excuse therefor, and it must appear from other evidence, that notwithstanding the act done seems to be contributory negligence, or a risk assumed by the plaintiff, under the peculiar circumstances, such result does not follow.
    8. Rule as to Instructions Before Argument.
    Instructions to the jury before argument, under Sec. 6190, Rev. Stat, should embody general rules, not only correct in the abstract, but so covering the case in issue as not to give a one-sided view of any particular theory of counsel or attach undue importance to particular items of evidence.
    9. Rule Applied.
    Where plaintiff alleges the commission of several acts of negligence, as a result of which the injury complained of occurred, a charge, singling out each of these several acts and instructing the jury that any one of them alone would not, as a matter of law, entail liability, is unfair, misleading and improper.
    10. Duty oe Court To Instruct as To Presumption oe Negligence.
    The purpose of an instruction to a jury is not to state general abstract propositions, but to deliver instructions which will aid the jury in arriving at a proper verdict. Thus, where it appears that there were two ways in which a servant might have performed his work, with reasonable dispatch, one safe and' the other attended with danger, and the servant adopted the dangerous way, it is the duty of the court to instruct the jury that the burden rests upon the servant to remove such presumption and to show that he was exercising ordinary care before he can recover; and a failure to comply with a request to so charge constitutes prejudicial error.
    11. Rule as to General Charge.
    Where the general charge fairly covers a case, in the absence of any request to make more particular statement, or specific objection made at the time to particular language, it will- be considered to have given the jury proper instruction, in the light of which they should have arrived at a proper and just conclusion.
    12. Single Questions to Experts Need not Meet Case Fully.
    It is not necessary, in the examination of expert witnesses, to state an entire case in one question. It is sufficient, for example, to ask such a witness if a certain method of doing certain work, by two employes, is safe, and if the question is incomplete or it is necessary that the evidence should show as to which of such employes such method would or would not have been safe, the additional facts may be developed on cross-examination.
    Heard ON Error.
    Andrews Bros., for plaintiff in error.
    C. P. and L. W. Wickham, for defendant,
    cited:
    The plaintiff should allege that the decedent had not knowledge nor equal means of knowledge with the railroad company. Coal & Car Co. v. Norman, 49 Ohio St. 598, 607 [32 N. E. Rep. 857]; Wood Master & Serv., Sec. 414; Mad River & E. E. Ry. v. Barber, 5 Ohio St. 541 [67 Am. Dec. 312]..
    As to adoption of rules, see Elliott Railroads, Sec. 1280.
    
      When there is safe way and employe adopts unsafe way, he is guilty of contributory negligence. Elliott Railroads, Sec. 1318; Pennsylvania Co. v. O’Shaughnessy, 28 N. E. Rep. 675 [122 Ind. 588]; Spencer v. Railroad Co., 29 N. E. Rep. 915 [180 Ind. 181]; Bresnahan v. Railroad Co., 18 N. W. Rep. 797 [49 Mich. 410],
    Duty not to assume unnecessary risks. Elliott Railroads, Sec. 1313 note; St. Eouis Bolt & Iron Co. v. Brennan, 20 Ill. App. 555; St. Louis Bolt & Iron Co. v. Burke, 12 Ill. App. 369. See Elliott Railroads, Sec. 1314.
    Was bound to obey rules. Johnson v. Railway Co., 5 Circ. Dec. 290 (11 R. 553) ; Woolsey v. Railway Co., 33 Ohio St. 227. '
    When an employe with full knowledge of all regulations designed for his protection, and of the mode of business conformable thereto, acquiesces therein and continues in the service of the company, he will be held to have taken upon himself the risks incident to his employment. Pittsburg, C. & St. L- Ry. v. Eis, 1 Circ. Dec. 329 (2 R. 3).
    If an employe continues without objection or knowingly in opposition to direction, to use unsafe or unsuitable instrumentalities, he is deemed to have waived his right to damages from injurious results from such use. Ford v. Railway Co., 110 Mass. 240 [14 Am. Rep. 598].
    See pertinent language in Timmons v. Railway Co., 6 Ohio St. 105, pp. 109, 110, especially that at end of decision.
    If the plaintiff’s own testimony raises a presumption of negligence upon his part, contributing to his injury, and he offers no evidence tending to rebut such presumption, the court is warranted either in directing the jury to return a verdict for the defendant or in taking the case from the jury and entering a judgment of dismissal. Grant v. Railway Co., 6 Circ. Dec. 516 (10 R. 362). Affirmed by Sup. Ct., 54 Ohio St. 660; Baltimore & O. R. R. Co. v. McPeek, 8 Circ. Dec. 742 (16 R. 87).
    Employes assume the obvious risk of the business undertaken. Horton v. Vulcan Iron Works, 1 Am. Neg. Rep. 495. See Coal Co. v. Estievenard, 53 Ohio St. 48, 57 [40 N. E. Rep. 725].
    A person in the employment of a railroad company who discovers that the appliances with which he is working, are, or have become through use, unsafe, and continues without any special order of the company, and without making any complaint, to use the said appliances, that he will be held to have either run the risk of being injured, or to have been guilty of contributory negligence. Ballou v. Railway Co., 5 Am. & Eng. R. R. Cas.; 480, 506, note, and authorities cited ; Quironet v. A, G. S. R. Co. (Alabama), 18 Am. & Eng. R. R. Cas. 551; Fritz v. Salt Lake Gas & Elec. Co., 5 Am. Neg. Rep. 727-732. See also Cook v. Mining Co., 41 Pac. Rep. 557 [12 Utah 51]; Colorado Coal & Iron Co, v. Carpita, 40 Pac. Rep. 248 [6 Colo. App. 248]; Richardson v. Coal Co. 32 Pac. Rep. 1012 [6 Wash. 52; 20 R. R. A. 338] ; Rewis v. Simpson, 29 Pac. Rep. 207 [3 Wash. 641]; George-v. Railway Co., 19 So. Rep. 784 [109 Ala. 245].
    That company could not be expected to foresee the situation. See Enc. Raw (1 ed.) 403, note; Wabash Co. v. Rocke, 14 N. E. Rep. 391 [112 Ind. 404; 2 Am. St. Rep. 193]. See Wood’s Master & Serv., p. 740, good case. See also p. 743, note; also p. 745, and 9 Allen, p. 396. This is as to instructions to foreman to have a chip on jack.
    The rule of ordinary care in Ohio was laid down in Cleveland, C. & C. Ry. v. Terry, 8 Ohio St. 570, 581, and such has been Jhe rule ever since.
    Proximate cause : Handelun v. Railway Co., 32 N. W. Rep. 4 [72 la. 709]; 8 Am. Neg. Rep. 383; 8 Am. Neg. Rep. 352; 7 Am. Neg. Rep. 6 ; 7 Am. Neg. Rep. 353 ; 6 Am. Neg. Rep. 747; 6 Am. Neg. Rep. 376; 6 Am. Neg. Rep. 378; 6 Am. Neg. Rep. 197; 6 Am. Neg. Rep. 737; 4 Am. Neg. Rep. 490; McDonald w. Smelling, 14 Allen, 290, 299 [92 Am. Dec. 768] ; Hobbs v. Railway R. R., 10 Q. B. Ill, 122; 4 Am. Neg. Rep. 496 ; 4 Am. Neg. Rep. 404; 4 Am. Neg. Rep. 541; 3 Am. Neg. Rep. 545.
    Contributory Negligence: 4 Am. Neg. Rep. 361.
    Going into a place of danger: Frazer v. Railroad Co. (Ala.), 1 So. Rep. 85 [81 Ala. 185]; Coops v. Railway Co., 33 N. W. Rep. 541 [66 Mich. 448],
   MOONEY, J.

In the court of common pleas, Rose Whidden, administratrix, etc., as plaintiff, filed her petition and amended petition against the Rake Shore and Michigan Southern Railway Company, defendant, and therein alleged, in substance, that on June 17, 1897, her intestate, William Whidden, was in the employ of the Rake Shore and Michigan Southern Railway Company, in the shops of that company in this city and that on that day he was called from his tank upon the floor of a locomotive tender; that in the performance of that work but two men were engaged, and that the appliances used for lowering the tank was a lever jack; that at the time in question there was no rule requiring the presence of any one to superintend the doing'of the work, and that not enough men were employed in and about the doing of it to secure safety to the persons so engaged; that while so engaged, by reason of the want of a rule that should have been made by the railway company requiring three persons to be present, by reason of the absence of a superintendent, or one io oversee the work, by reason of the appliances used which were not suited to the work to be done and by reason of the fact that the bottom of the tank had been recently painted, which fact was known to the railway company and not known to William Whidden, and while so engaged, the jack slipped from under the tank and it fell upon the head of William Whidden and injured him so that he died, and the prayer is for a recovery of damages in this cause of action in the sum of ten thousand dollars.

To the petition and amended petition constituting this cause of action, there was filed by the defendant named, an answer in which it is first denied, in substance, that the defendant was guilty of any negligence as averred in the petition; and then as an affirmative defense, it is charged that whatever injury occurred to the plaintift’s intestate, was due or was contributed to by negligence of William Whidden himself; and next it is charged that at the time of his entering into the employ of the company, he signed a written contract by the terms of which he agreed to inspect all appliances that might be used in any of the duties, to the discharge of which he might be called, and that he would report any defect or insufficiency of such appliances to the company. He also further agreed that he would not permit an order or direction of any superior officer to prevent him from taking time to make such inspection, examination, or to make such report.

For a third defense, it is substantially averred that if the plaintiff was injured, as alleged, it was due to the risk assumed in the employment, or in the discharge of the duties about which he was engaged.

The plaintiff, by way of reply, denies all three of these substantive or affirmative defenses set out in the answer, and upon the issues thus joined, the case was tried to a jury, which resulted in a verdict for the plaintiff.

A motion for a new trial, one of the grounds of which was that the verdict was not sustained by sufficient evidence, was filed and was overruled. A bill of exceptions embodying all the evidence, requests to charge, the action of the court thereon, and the charge as given by the court, was filed and now error is prosecuted here by the defendant below to reverse this judgment

The errors assigned are: There was error in overruling the motion for a new trial; that the verdict and judgment are against the weight of the evidence, and not sustained by sufficient evidence; that there is error in the admission and rejection of evidence to the prejudice of plaintiff in error; that there is error in the refusal of the court to charge as requested by defendant below; and also error in the granting of the requests of the plaintiff below to charge before argument, as also in the general charge, as given.

The number of exceptions that have been called to the attention of the court are very great, and it will not be possible within any reasonable time to advert to each singly.

We may say, with reference to the objections to the evidence, that ■we find, except in a single instance, no valid ground of objection and exception by the plaintiff in error.

The question most made was, as to the completeness of the question that was put to several witnesses called as experts, where they were asked: “ Would it be safe for two persons to be assigned to do this work; would it be safe to use a lifting jack of the kind exhibited to the jury, in doing the work in the manner in which it was agreed.by witnesses on both sides that the work was done? ”

It is objected, to that question, that it was not stated: “ Would it be safe for a man whose head was under the tank at the time, or would it be safe for the man who was doing the work? ”

The plaintiff below was not bound to state his entire case in one question to the witnesses and ask whether it was safe, as ordinarily understood to be, was it safe for persons engaged in the work. To ask whether it would be safe for a person whose head was under the tank at the time it was being lowered, would not be necessary, the question being, generally, would it be generally safe for a person engaged in doing the work, being in a proper, position; and if it was believed by the defendant below that this question was incomplete and did not meet the case fully, as it would be finally met and finally given to the jury, it was quite proper and quite usual to develop any additional facts by cross-examination as was done in every instance. We find upon this line of questions and the ruling of the court permitting this question to be answered, no error to the prejudice of the plaintiff in error.

On pages 131 and 132 of the record, we find exception 70 :

Q. You may state to the jury whether or not there was any rule or instruction in this shop or in the tank shop or in the round house with reference to the use of wood — as a sort of washer between the foot of the jack and the metal, a heavy metal substance to be raised?
“ Á. Yes, sir.
“ Q. If so, how long had it been in force, or in existence ?
“ Mr. Andrews: I object to the question.
“Judge Wickham: I expect to show that the rule was communicated to Mr. Whidden; that it was not a written rule, but a verbal rule, I expect to show that he was instructed to lift.
“ Mr. Andrews: I object to that statement.
“ Court: I am inclined to think that upon this point, it would not be competent to show an oral rule communicated by Mr. Bradeen to the foreman.
“ Judge Wickham : We except to the ruling of the court.”

The effect of that action of the court was to deprive this defendant from showing that an oral rule was made, was in existence and was actually communicated to the plaintiff’s intestate in the court below. The plaintiff below grounded her right to recovery upon an oral order to do the work. Actions of this kind are most commonly grounded and are frequently sustained upon oral orders. There is no requirement of law that orders to employes in railroad shops, any more than in any other department of industry, should be directed by written rules, and we are quite clear that this question should have'been answered, .and that the exclusion of the answer under the statement was error.

After the close of the testimony, it may be said with reference to this particular question, afterwards, this .witness, in another form, was permitted to answer a question that to some extent met the offer of proof made by the defendant below, but not entirely so. While perhaps upon the record, as it stands with the other questions and answers, we would not feel that the error was such as to reverse this judgment, yet, in passing, for reasons that will appear further on, 'we desire to express the opinion that this question, in the form in which it was stated, should have been answered.

The second request of the plaintiff to charge, without reading it, because it is- lengthy, is perhaps a correct statement of an abstract principle of law, but inasmuch as it does not embody or state the necessity of any causal connection between the fact stated to be negligence and the injury here in question, it seems to be viewed as an abstract direction embodying the law of some case, but not applied by its language to this case. It could not aid the jury, and we think should not, in the form in which it was presented, have been given.

The same as to the third request; and the same as to the fourth, fifth and sixth requests of the plaintiff. Some of these are found to be incorrect statements of law. Others are found to single out particular items of evidence and to attach, as we think, undue importance to such particular items of evidence, for we do not conceive it to be the purpose of' the law to permit a charge before argument, to authorize parties to single out particular theories and particular parts of the evidence and hold them up to the jury and thus give them undue importance in the case, and certainly mislead the jury. We are all of the opinion that these requests, when piesented, should be the statement of general rules, not only correct in the abstract, but so covering the case as not to give a one-sided view of some particular theory of counsel, or to attach undue importance to some particular items of evidence.

What has been said with reference to the plaintiffs requests will apply to all but one of the requests of the defendant. The plaintiff, in her petition, had charged that several things were done and that as a result of this, or of these several negligent acts, injury happened. The defendant below, singling these out one by one, with the request to the court to charge the jury that any one of them standing alone would not, as a matter of law, entail liability. That was an unfair, misleading and improper charge to be given, as we think, to- the jury.

However, there was a request, number four, by the defendant below, which is in this language :

“ That if the jury find that the tank in question was resting at one end upon the foot of the jack, with no other support, at an elevation at that end, of from ten to fifteen inches, and that Mr. Whidden, for the purpose of reaching a piece of ‘ blocking ’ wholly within the coal pit, placed his arm and head under the tank, and that that piece of ‘ blocking > could have been procured by him with absolute safety to himself, by entering the coal-pit at its open end, a presumption of negligence on his part would arise; and that before the plaintiff can recover, the burden rests upon her to remove such presumption and show that he was exercising ordinary care by a preponderance of the evidence.”

It may be doubtful whether or not, as an abstract proposition of law, as a statement of law, applicable to all cases, this would be true; that is to say, whether the rule existed 'to the extent claimed by counsel for plaintiff in error in this case, that in all cases, when there are two ways of doing work, or of accomplishing a given result, one absolutely safe and another attended with danger, that the adoption of the plan that is attended with danger raises the presumption of the negligence of the plaintiff. But in this case, the evidence is not in dispute so far as applies to this instruction, and it amounts to a request; therefore, that if tlmre were two ways of accomplishing the work with reasonable dispatch, that is a proper qualification of the rule.

To make my meaning clear, it is always possible with absolute safety to cross a railroad track. One might be attended by a messenger sent ahead to see that there is no danger; but if, instead of doing that, and lor the purpose of pursuing his journey and his business with reasonable dispatch, he does not do it, because he does not surround himself with all precautions, and because he does not take the course that is in all situations absolutely free from danger, does not raise the presumption. But here, there is no showing in evidence but that this work to be done cuold have been done with reasonable dispatch by procuring blocking in some other way than by reaching through under the tank; and so we think that whether this request states a rule which is correct in all cases or not, under the conceded facts, or undisputed testimony, unquestioned evidence in this case, it does state a fact, and that is the purpose of an instruction to a jury, not to state a general proposition of law that is correct, but to deliver instructions which will aid the jury in arriving at a proper verdict and such as the law requires. We think this request should have been given, and that its refusal was error.

We think that the criticisms of the general charge that were made in argument are not well taken; that the general charge fairly covered the case and that in the absence of any request to make more particular statement, or in the absence of any specific objection at the time to particular language, that the general charge or the general result of the charge to the jury must have been to have given them proper information and in the light of which they should have arrived at a proper and just conclusion.

This leaves undisposed of the question as to whether or not this verdict is sustained by sufficient evidence. Many of the facts, and we think, enough of the facts to dispose of this question, are not in serious dispute, although there may be slight matters of evidence against it. From the uniform trend of the testimony, and sustained, as we think by the clear weight of the evidence, these facts may be said to have- been presented to the jury and should have been determined by them to be the controlling facts in the case, that William Whidden, plaintiff’s intestate, a young man thirty-two years of age, of more than average intelligence, employed about these shops for three years or about that time, and for one year, or for one year and more, accustomed to be called from work in the round house, which he was required to perform ordinarily, to assist in the lowering of tanks and raising of tanks from the floor of tenders; that he had on more than two dozen times used jacks and been engaged in blocking up and lowering down tanks onto the floor of the tenders; that on this day a jack was used; that it was placed under the tank, the tank being at an angle of from two-thirds of an inch to an inch to the foot; that it was placed in position by Whidden himself; and after the tank had been raised slightly from the blocking, he left the jack and the pit of the tender, got down from the tender floor onto the floor of the shop for the purpose of blocking the tank, for the general purpose of the employment; that when he got down to the side on which he was to place the blocking in position, there was no blocking there on that side; that blocking was situated in abundance at the other side of the tender; that it would have required six or eight steps for him to procure it; that, so far as the evidence shows, at that time, the jack was securely in place and there was no apparent necessity of proceeding speedily to procure the blocking; that for the purpose of gaining possession of the blocking, he reached his arm under the tank thus raised, and between the tank and the floor of the tender, he placed his head under the tank; and while in that position, for some reason not explained here, the jack slipped and the tank fell down until its further progress was arrested by the goosenecks, and caused the injury which resulted in the death of Whidden.

We have said, in sustaining the requests of defendant for charge, that these facts raised a presumption of contributory negligence of William I#. Whidden; the burden of proof then, under the well known rules of law, was for the plaintiff in the court below to remove this presumption, and that evidence, from the very requirement of the rule, must be exculpatory; it must show some reason; it must sustain some excuse ; it must appear from other evidence that while this seems to be negligence, and that it seems William 1,. Whidden took the risk, that yet under the peculiar surrounding circumstances, that the result does not follow.

We look in vain in this record for such excusing circumstances. It is in evidence, or it is suggested that the jack slipped, but it is in evidence on the part of the plaintiff below and rather emphasized, that the jack frequently slipped, and if that is true, if Whidden used it for more than two dozen times, is it not fair to presume, in the absence of all testimony to the contrary, that he knew something of the weakness of the jack in that particular? If the jack did not slip, if it was stroug and did not slip, then the cause is unexplained in the evidence. If it frequently slipped, as the plaintiff’s own testimony below tends to prove, then Whid-den should have known it.

It is suggested that the paint caused it to slip, but for two hours on that morning, or about that time, Whidden was working around that tank; he had lowered it and raised it and had placed the tank in the position which it was at the time the injury happened. Now, if this paint was not dry, if it was soft, if it was said that the jack would slip when brought in contact with it, should not the fact that he had been engaged about the tank be some evidence of knowledge upon his part ? But then, the reason appears that the jack, if it slipped, should have slipped in the opposite direction from what it did. It slipped toward its bearing instead of away from it, but certainly that manner of falling could not tend to sustain the contention made by the defendant in error here, that the slipping was due to the presence of paint.

It is claimed that two men only were employed instead of three about this work. If that is true, Whidden knew it. He went there, and there is no evidence that at any time for those two dozen times, that any more than two men were employed, and the weight of the evidence in this record shows clearly that the only difference between employing three men and employing two, is that when three men are employed the work can be done more quickly than when only two men are employed.

However, if three men had been employed, it does not appear that this injury would not have happened. If three men had been employed and one of them had been standing at this jack, still, if Whidden had placed his arm and his bead under this tank, he would not have had time, by reason oi any precaution or by reason of any warning, given at the time, to have escaped. In other words, there is no causal connection between this negligence; if there was negligence in not employing three men, and the injury that happened. The same is true with reference to rules.

Upon the whole case, while, as in all cases of this kind, we view this injury and death as a calamity to this family, yet we must recognize that the defendant below and the plaintiff in error here, is not an insurer ; that the law does not exist for the purpose of distributing the burden upon persons who are guiltless. Under the rules of law, we must hold that-Whidden, when he placed his arm and his head under this tank and was killed while he was in that position, can not recover; he could not, if he had survived, recover, aud his administratrix cannot recover, unless from the evidence there is something shown to excuse, or what seems to us to be clear evidence raising the presumption of his negligence.

Upon the whole case, for the reasons indicated, for error in excluding the evidence that has been indicated, in charging the requests of the plaintiff below that have been pointed out, and in the refusal to charge the request by the defendant, because the verdict and judgment are not sustained by sufficient evidence, the judgment of the court below will be reversed and a motion for a new trial will be sustained and the cause remanded to the court of common pleas for further proceedings according to law. 
      
       Section 5190, Rev. Stat. — Editor.
     