
    Railroad Company v. Kassen.
    
      Negligence — When party may recover notwithstanding his own negligence — Duty of railroad company to person who has fallen from train.
    
    1. It is a well settled rule of tlie law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary" care to avoid injuring him, and he was thereby injured.
    2. Where the employes of a railroad company, engaged in operating one of its trains, have notice, such as a person' of ordinary prudence would believe and act upon, that a passenger had stepped or fallen from the train while moving at a high rate of speed, onto the track, where he is exposed, in a helpless condition, to the danger of injury from another of its trains, the company owes him the duty of observing due care to prevent his being so injured, although he was guilty of negligence in so stepping or falling from the train, and that was known to the employes thereon; and in such case, the company should, in the exercise of proper care, stop the train from which the passenger fell, and remove him from the track; if that could be done without danger to the passengers or employes on the train, or notify those in charge of the train from which he was in danger of receiving injury, and cause it to be operated with a due regard for his safety, or adopt some other reasonable precaution to avoid injury to him. The omission to use such care, if injury in consequence ensue, is actionable negligence.
    3. The rule, that the negligence of the injured party, which proximately contributes to the injury, precludes him from recovering has no application where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.
    (Decided March 23, 1892.
    Error, to the Superior Court of Cincinnati.
    I. On the evening of the 23rd of October, 1883, the defendant below, ran an excursion train over its road, from Hamilton to Middletown, returning to Hamilton- about twelve o’clock that night. The distance between the two points is twelve miles, and the time occupied in running it, each way, was about thirty minutes. Joseph Kassen, who was a passenger both ways, while on the return trip, and when the train was in rapid motion, walked through the rear car, onto- the platform, and stepped or fell off, onto the railroad track, where, about two hours afterwards, he was run over by another of defendant’s trains, and, was thereby, it is claimed, killed. The action below, to recover damages for wrongfully and negligently causing his death, was brought by the administrator of his estate, against the defendant, in the superior court of Cincinnati. The petition charges, “that by reason of the negligence of the defendant and its servants, there was no light upon the platform, nor was there any barrier or guard there placed to prevent passengers falling from said platform, so that without any fault on his part he fell upon the track o'f the railroad, and was greatly and permanently injured thereby, and he was unable by his own exertion to move from the track; that the agents of the defendant in charge of the train were at once notified of the falling of Kassen from the train, but they failed and refused to stop the train or to care for the fallen passenger, but permitted him to remain' on the track where he had fallen; and that within an hour or two after Kassen had fallen upon the track, and while he yet remained there injured as aforesaid, another train, owned and controlled by the defendant, passed over the road at this place where Kassen was ljdng, and notwithstanding the notice which defendant had received, and by reason of negligence of the defendant and its agents, the said train ran over the said Kassen, and he was thereby killed.”
    These allegations of the petition, were denied by the answer. A trial of the issuesjto a jury_ having resulted in a verdict for the plaintiff, upon which judgment was rendered at special term, and afterwards affirmed in general term, the defendant prosecuted error to this court.
    The record shows, that on the trial, the plaintiff gave evidence tending'to prove, that the cars of the excursion train •on which the plaintiff’s intestate was a passenger^ were crowded with people, and that he was passing through the cars looking for a seat; that the night was dark, the door of the rear car through which he passed was open, and the platform from which he stepped or fell, was unprovided with any guard or light; that he was seen to fall upon the railroad track, immediately after which, the brakeman in that car was notified, and he was requested to stop the train; the train was not stopped, but passed' on to the -next station and finally to Hamilton; that the train could have been stopped without danger to the passengers or the train, and without any great inconvenience; that there were telegraph offices, which were open, at each of the stations where the train stopped before reaching Hamilton, and also at the latter place, where the train arrived in time to have given notice of the accident by telegraph to those in charge of any subsequent train coming from the direction of Middle-town, before leaving that place, and that no notice was given or attempted. The evidence further tended to prove, that by the fall, Kassen was rendered unconscious and disabled, but was not killed; and while lying upon the track in that condition, another train passed over the road from Middletown to Hamilton, an hour or two after he had fallen, and ran over and killed him; which train did not reach Middletown until nearly an hour after the train from which the deceased fell had arrived at Hamilton.
    At the conclusion of the evidence, and before the argument, the defendant requested, .the court to give in charge to the jury, the following instructions, which were given:
    “1. Kassen was guilty of negligence in falling or stepping off the train, and if he was killed thereby or injured so that he would have died from such injuries, your verdict must be for the-defendant.
    2. There is no evidence of negligence on the part of the persons operating the train which ran over Kassen.
    3. If Hess, (the brakeman) was not told that a man had fallen off the train, or if Hess did not hear such statement, your verdict must be for the defendant.”
    
      The defendant also requested the court to instruct the jury as follows:
    “4. It was Kassen’s own fault that he fell or stepped off the train, and the railroad company was under no obligation to stop the train simply for the purpose of picking him up' and carrying him as a passenger to Hamilton.” The court gave this instruction with the following modification;
    “ But if the employes running the train, or any of them,, had such notice at the time of the fall as would lead a man of ordinary average prudence to believe that by the fall Kassen was thrown unconscious or helpless upon the track, and so exposed to danger from a train following, then it was. their duty to stop their train and rescue him from such danger if such stop might have been made without danger to themselves or to the passengers of their train, and failure to discharge such duty would render the company liable if death was caused by the following train while Kassen lay unconscious or helpless on or near the track.”
    The court in its general charge, after the argument,, instructed the jury as follows:
    “I have already stated in the special charges which were given you before the argument, that the evidence in this-case shows that the young man in falling or stepping off the-car was himself nc?t acting with ordinary care, so that for the falling off the car he has no right of action against the-company.
    “Again, I have charged you that there is no evidence of negligence in the employes of the company who were running the train which ran over the man.
    “The only question left in this case, therefore, for you to-determine is, whether or not the company had notice through the employes of the train from which he fell, that the man had fallen upon the track and was there in an unconscious or helpless condition, such that .his death or injury would be likely to occur from a following train.”
    Exceptions were taken by the defendant, to the refusal of the court to give in charge the fourth instruction above set forth, without modification, and also, to the modification given by the court. These exceptions present the questions in the case.
    
      
      Ramsey, Maxwell Cf Ramsey, for plaintiff in error.
    I. If the liability of thede fendant, as declared by the court below, depends upon receipt of notice, that the deceased was lying helpless on the track exposed to danger, the notice must have been of that fact. Notice that a man has fallen off the car is not notice that he is lying on the track exposed to danger. It is a .question of the construction of the English language and for the court. The court is not at liberty to leave it to the jury to construe words against their plain meaning. There are no “surrounding circumstances” to affect the construction. The words testified to are plain and unambiguous.
    The most that can be said is that it was open to the brakeman to conjecture as to the fate of the fallen passenger. He may have been killed. He may have landed in safety-When, or from which side he fell was not- stated. A man falling from a fast moving train would naturally be thrown a considerable distance.
    The claim of the plaintiff is really this, that every time a drunken passenger negligently falls, or wilfully jumps, from a train, it devolves upon the brakeman to stop the the train, abandon the duties for which he is employed, to get off and walk back over track and bridges, it may be for miles, and in the dead of night, to see if perchance the man has added trespass to negligence. If that be the law this judgment can be sustained; otherwise, not. McClelland, Adm., v. L. N. A. & C. Ry. Co., 94 Ind., 276; Henderson v. Louisville & Nashville Railroad, 123 U. S., 61.
    II. But even if the communication to Hess can be distorted into notice, that Kassen was lying helpless upon the track, we submit that the company is nevertheless not liable.
    Kassen by his own act had ceased to be a passenger, and had become a trespasser upon the defendant’s roadway. It is immaterial that he had been a passenger. The case is the same as if he had come upon the track from an adjoining field, or fallen upon it from a crossing wagon.
    Suppose a brakeman standing looking back from the.rear platform of a moving train, should see a drunken man come from an adjoining field and lie down upon the track, or should see him fall, stupid and unconscious, from his wagon while crossing the railroad track, would the brakeman be under a legal obligation to stop the train and go back, or take any other steps to rescue the man from the danger of being run over by some subsequently passing train? And would the company be liable for his failure to do so, if the passenger should be run over by a later train, without negligence on. the part of the employes operating that train? In the case supposed, just as in the case at bar, the company would of course be liable, notwithstanding the man was a trespasser, if a later train had run over him, with notice of his presence-on the track; but the notice must have been to some one-concerned with the operation of that train, and representing-the company in that behalf, although not necessarily to an employe on the train; it would be sufficient if given to the train dispatcher, or to the track-walker.
    But the liability of the company would arise in that case because of its responsibility under the rule respondeat superior, for the wrong of an individual. That is the ground of all corporate liability in cases of tort. There is no such thing as corporate tort, in the absence of personal culpability. Whenever a corporation is guilty of tort it is because some person for whom the corporation is responsible has committed a tort, for which that person might be held individually liable. - I affirm this as a principle of universal application. Ret us apply it to the case at bar. Was any agent of the company guilty of a personal tort? If not, the essential predicate of liability by the company is wanting. Confessedly the engineer of the second train committed no tort. Did the brakeman of the first train? Congar v. C. & N. IV. Ry. Co., 24 Wis., 157.; Commonwealth v. Boston & Maine Ry. Co., 129 Mass., 500.
    
      Baker & Goodhue, for defendant in error.
    I. It is claimed by counsel for the railroad that the notice to Hess, who was the brakeman, was insufficient. But as there was testimony tending to show that the brakeman had notice, we submit that in the absence of a motion for a new trial the question of its sufficiency, as a matter of fact, will not be passed on by this court. But we contend it was sufficient. Notice to the brakeman was notice to the company. Railway Company v. Ranney, 37 Ohio St., 665; Railroad v. Manson, 30 Ohio St. 451.
    II. The defendant company, if as a matter of law, the brakeman’s knowledge was the company’s knowledge, knew that a man had stepped off their train upon their track from a train going at a considerable rate of speed, and, of course must be charged with the knowledge that in the ordinary course of things a fall from a train going at that rate of speed upon the track would probably stun or make unconscious or helpless a passenger so falling from a train.
    . The train stopped at two stations between that particular point and Hamilton, both of which were railroad telegraph stations, as was also Hamilton. The company took absolutely no steps either- to investigate or discover the condition of the passenger, or to render him any assistance, or to warn other trains of the probability at least of a man lying upon their track in that condition.
    If Kassen was stunned by the fall, and lay helpless upon that track and the company had knowledge oi his condition, or had such knowledge that presumably they ought to have known of his probable condition, then it was in the power of the defendant company to have averted his killing by the second train. Upon this state of facts what duty devolved upon the railroad company. Counsel for the company contend that it was purely humanitarian; we aver it was legal.
    In support of the view of counsel for the company that the court erred in refusing to give charge four, and erred in giving the same modified as indicated, four cases are cited. An examination of these cases, we think, discloses that none of them are applicable, either in point of fact or principle, to the case at bar.
   Wii/i/iAMS, J.

The instructions of the court, relieved the jury from the inquiiy, whether there was any negligent omission of duty, on the part of the railroad company, with respect to providing a light or guard for the platform of the car from which Kassen fell; and wholly exonerated the company from any blame for his fall.

The single question submitted to the determination of the jury was, whether the company, through its employes, had notice that Kassen “had fallen upon its track, and -was there in an unconscious or helpless condition, such that his death or injury would be likely to occur from a following train;” and upon that question, the jury was instructed, that if the company had such notice, its duty was to exercise due care to prevent his death or injury, and its failure to do so, would render it liable, “if death was daused by the following train, while Kassen lay unconscious or helpless on ornear the track. ”

As no motion for a new trial was made, the finding of the jury upon the issues of fact submitted to it, is not open to review.' Westfall v. Dungan, 14 Ohio St. 276; Randall v. Turner, 17 Ohio St. 262; Everett v. Sumner, 32 Ohio St. 562. But if it were, we cannot say there was no evidence to sustain the verdict. In the disposition of the case here, therefore, it must be accepted as established by the verdict, that the death of Kassen did not result from his fall, but was caused by the train which subsequently ran over his body; and also, that the defendant had due notice of Kassen’s fall, in time to have prevented his death, by the exercise of ordinary care, either by stopping the train from which he had fallen, and removing him from’ the track, or by such notice to those in charge of the following train, as would have enabled them, by proper precaution, to prevent injury from it. Assuming then, that by his own negligent act, Kassen was on the defendant’s track, in a disabled and helpless condition, liable, if not removed, to be run over and killed by a train operated by the defendant, of which, the defendant, through its employes, had such notice as a person of ordinary prudence would believe and act upon, was it under any obligation to use reasonable care to prevent the destruction of his life, which otherwise probably would, and in fact did result from the movement of one of its trains? Or, did Kassen’s own negligence, relieve the defendant from the observance of ordinary care to prevent the injury which ensued, or so contribute to it, as to deprive his representative of a right of action for the injury, death having resulted therefrom? The court properly instructed the jury, that the employes operating the train which ran over Kassen, were without fault. They had no notice that he was on the track, and were not required to anticipate his presence there. Until they discovered him, they were justified in running the train as if the track was clear; and it is not claimed that after his discovery, they omitted any precaution for his safety. If those employes had received notice of Kassen’s situation in time to have avoided the injury, it is clear that it would have been their duty to exercise due care in the management of the train, to do so, notwithstanding he was there through his own fault, which was known to them; and for their omission to use such care, the defendant would be liable. While they were ignorant of the situation, the defendant was not; and though the injury might have been easily averted, no means were employed for that purpose. The train from which Kassen fell might have been stopped, and he removed from the track. It is not contended that to have done so, would have endangered the passengers or employes on the train, or caused any considerable inconvenience. The defendant’s servants in control of the train which ran over Kassen, could have been notified by telegram at Middletown, of his exposed condition, and they, by the use of ordinary care in the operation of the train, could have saved him from the injury. Either precaution would have prevented the injury; and a reasonably prudent person, under the circumstances would, we think, have adopted one or the other. A proper appreciation of human life, would' dictate as much to a person of ordinary prudence.

It is a well settled rule of the law of negligence, that the plantiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant, after he became aware, or ought to have become aware of the plain-tift’s danger, failed to use ordinary care to avoid injuring him. The danger to which Kassen was exposed, while on the railroad track, after his fall, was that of injury from a train belonging to the defendant, operated by machinery and agencies under its control, for which it was responsible, and not' from some independent cause; and, though the defendant may not have been under any obligation to use care to prevent his injury by others, it owed him the duty of observing ordinary care to avoid injuring him in the use of its own property. And in the exercise of such care, it should have stopped the train from which he had fallen, and i emoved him from the track, or notified those in charge of the train which followed it, or would first pass over that part of the road, and cause it to be run with due regard for his safety, or adopted some other reasonable precaution to avoid the injury. The omission to do so, was actionable negligence; and Kassen’s death having been caused by such negligence, as found by the jury, the defendant is liable, unless the negligence of Kassen, so contributed to his death, as to defeat the action; and we think it did not. The rule, that the negligence of the injured party which proximately contributes to the injury of which he complains, precludes him from recovering, does not apply, where, as in this case, the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a prbper degree of care to avoid injuring him. In Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St., 172, it is held, that: “When the negligence of the defendant in a suit upon such ground of action,' is the proximate cause of the injmy, 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.” And such is the well settled law. The negligence of the plaintiff’s intestate, in stepping or falling from the train while moving at a high rate speed, was only the remote, and not the proximate cause of his death; the proximate cause being, the omission of the defendant to use proper care, after having become aware of the danger to which his negligent act had exposed him.

We find no error in the charge of the court or in the refusal to charge as requested.

Judgment affirmed.  