
    (Eighth Circuit — Cuyahoga Co., O., Cir’t Court,
    Oct. Term, 1899.)
    Before Caldwell, Hale and Hull, JJ.
    [Judge Hull, of the Sixth Circuit, taking the place of Judge Marvin.]
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY v. JOSEPH L. BALDWIN.
    
      Minors entering service of R. R. Co. under false representation as to age — Duty of R. R. Co.—
    
    (1). A minor entered into the employment of a Railroad Co., falsely representing that he was of age, the rules of the R. R. Co. providing that no person under age should be accepted into its employment; and remained in the employment of the R. R. Co., performing his duties and receiving his wages for nearly three years, when he was injured while engaged in such service; Held: He was not a trespasser or wrongdoer on the cars of the R. R. Co., and the R. R. Co. owed him the protection due to an employe. But if the R. R Co. suffered any damage by reason of his false statement, it would be entitled to set that up against him in an action for wages, or to bring a suit for damages.
    
      
      Brakeman injured by overhead bridge temporarily lowered — Insufficient notice — Liability of R. R. to.—
    (2) . Where an overhead bridge on a railroad is about to be repaired, a written notice, such as was given in this case, to brakemen on the trains of the B. B. Co., of the impending repairs, is not sufficient to relieve the B. B. Co. from liability for injury sustained by a brakeman in consequence of a temporary lowering of the bridge for the purpose of repair. Under the circumstances, the natural presumption that the brakeman injured did not know or had excusably forgotten the danger, is so strong, that elear evidence-should be required to rebut it.
    
      Minor — Right to repudiate contract—
    (3) . An infant can not repudiate an executed contract for services, if such contract was apparently fair and reasonable and the other party does not know of his infancy; but he can abandon the service when he pleases,or ask for new terms.
    Error to the Court of Common Pleas of Cuyahoga county.
   Hull, J.

Joseph L. Baldwin, the defendant in error, is the father of Glenn Baldwin, and brought his action to recover for damages which he claims he sustained by way of loss of service, medical expense and otherwise, on account of injuries which his minor son suffered through the negligence-of the railroad company.

The verdict was for 11,058.00. Judgment was entered thereon, and this action is brought to reverse such judgment. Two grounds are relied upon by counsel for the railroad company in this proceeding in error:

First. It is claimed that Glenn Baldwin procured his employment by the railroad company by falsely stating that he was at the time twenty-one years of age; and that, therefore, the railroad company owed him no duty to exercise ordinary care in their conduct toward him.

Second. That the railroad company was not guilty of any negligence toward Baldwin, and that he was guilty of contributory negligence at the time of his injury.

Glenn Baldwin made application to the railroad company for employment in April, 1892. He was then only 16 years, of age; his 17th birthday was May 12 following. He applied first to the yardmaster at Collinwood, Charles Gil,braith, for a position as switch-tender. Gilbraith gave him a letter which he took to Cleveland and presented at the-office of the yardmaster, where he found George Davis, the-son of the yardmaster Samuel Davis. George Davis died before the trial below.

According to the testimony of the plaintiff, upon his making application for employment, George Davis asked him various questions; and turned to him and said, “You are not of age, are you?” And he answered “No.” That Davis thereupon said, “It will have to appear on this application that you are.” And that then Baldwin answered “You can put me down that I will be 22 years in May.” Davis put him down as 21 in the written application. Davis then told him that he could not be employed, under the rules of the company, unless he was of age; but Baldwin testifies, Davis said to him “that it was a matter of form, that was all it would amount to.” The various questions, and the answers of Baldwin, were reduced to writing , and signed by him in the form of the following application for employment:

The Lake Shore & Michigan Southern Railway Co.
Transportation Department.
Cleve’d, April 11, 1892.
Application of Glenn Baldwin, residing at Nottingham, O., for position as yard switchman.
Married or single, single. Weight, 160 lbs. Color of hair, dark brown, Name of parents, if living, J. L. Baldwin. Residence, Nottingham. Age, 21. Height, 5 feet and 7 inches. Color of eyes, grey.
If no family or parents living, give names and residences of relatives or persons you desire notified in case of serious illness, accident or death,---—
Have you any physical ailments or defects, such as lameness, deafness, color-blindness or short sightedness, to render you unfit or unsafe.for employment in railway service? None.
Where employed at present, by whom, and in what capacity? Not employed,
State what railroad experience you have had, giving names of roads, in what capacity employed, length of service on each road, and cause of leaving each place. No experience.
Have you ever been suspended from any situation? If so, state particulars, when and where? No, sir,
Have you ever been employed by the L. ¡3. & M. S. R’y before; if so, state when, in what capacity, on what division, and cause of leaving? Truckman at Collin wood Transfer House from February 29th to March 11th, 1892; left on account of reducing the force.
I enclose letters of recommendation from the following named responsible parties. (Two letters at least must be ■enclosed.)
L. B. Smith, Nottingham.
E.'M. Oliver,
Signature, Glenn H. Baldwin.
(Give full name, no initials.)

After this application was signed, Baldwin went to work as a switch-man, and after a few months he was given the position of a brakeman. Meanwhile he had been given a copy of the rules of the company, which, among other things, prohibited the employment of minors in such positions as brakeman or switchman, and these rules were made a part of the contract of employment. Baldwin continued in the employment of the company until the time of his injury, which occurred on the 28th of February, 1895, a period of nearly three years, and from the fall of 1892 until that time he was a brakeman, He performed his duties satisfactorily, and was paid his wages therefor by the railroad company, whose officers, so far as appears, aside from George Davis, the yardmaster’s clerk, had no information hat he was a minor.

On the night of February 26th, 1895, while performing his duties as a brakeman on a freight train, called the “Linndale Puller,” which ran from Collinwood to Linndale, west of Cleveland, he was struck by a stringer in an -overhead bridge, which had lately been put in while the bridge was being repaired, and injured about the head.

A large number of cases have been cited where it was held that persons wrongfully upon trains, were trespassers and not entitled to the protection of the railroad company, -and learned counsel for the railroad company insist with great vigor and earnestness that under the state of facts in this case Baldwin was a trespasser and wrong-doer; that he procured his employment in the service of the railroad ■company by false pretenses; that he was wrongfully upon the train where he was injured; that being a wrong-doer' and trespasser, the company owed-him no duty to provide-a safe place for him to work and safe appliances and machinery to do his work. No case directly in point has been cited by counsel, and we have found none.

The rule of the railroad company, requiring its employes-to be 21 years of age, is a reasonable one, but we can not agree with counsel that the false statement of Glenn Baldwin as to his age made him a trespasser upon the cars and tracks of the railroad company.

It appears that the representative of the company, the-yardmaster's clerK, to whom he applied for employment, knew either by his appearance or by information that Glenn Baldwin was not of age, and the first suggestion that Baldwin misrepresent his age came from the clerk of the yardmaster to whom Baldwin made his application for employment. Although Davis had no authority to waive any rules of the company, he had authority to receive Baldwin’s application for employment and to propound to him such questions as were required by the railroad company. Baldwin entered into the employ of the company under these circumstances. He had made no attempt to deceive the agent of the company to whom he made this application, but did state his age falsely to the company in the writing he signed. He remained in the employ of the company and its service, performing his duties and receiving his wages, for a period of nearly three years.

But aside from all this, and putting it as strongly as counsel for the company can put it, that he falsely represented his age to the company and colluded and connived with George Davis to deceive the company, we still think that while he was in the actual service of the railroad company he was entitled to the protection of an employe. The fact that he had misrepresented his age, and the further fact that he was a minor, did not make the contract for services void, but voidable. The railroad company, having' been deceived, on the other hand could terminate it when ever it discovered the deception; but until one party or the other put an end to the relations, the contract continued to-exist. He was not of age, but an infant cannot repudiate an executed contract for his services if such contract was apparently fair and reasonable,and the other party does not know of his infancy, but he can abandon the services when-he pleases or ask for new terms (11 Mich., 191).

v But it is said that this contract was induced by the fraudulent representations of Baldwin that he was of age, and' that the railroad company would not have employed hitnhad it known he was a minor. The question as to his age was not the only one asked Glenn Baldwin in this application. He was asked whether he was married or single;, whether he had any physical ailments or defects such as-lameness, deafneás, color-blindness, etc., which would render him unfit or unsafe for employment in the railway service; where he had been employed; whether he had ever-been suspended from any situation,* and several other questions, as appears from the application. He falsely stated his age. A false statement as to any other material matter would have the same effect upon the contract and the relation created between him and the railroad company. The-railroad company might fix the age limit at 25 instead of 21, and, if this were done, would a misstatement of a man 21 years of age that he was 25, render his contract void and make him a trespasser and wrong-doer upon the cars and tracks of the railroad company so as to deprive him of the protection due an employe? The railroad company might deem it important that their employes be married men, for the reason that they might be more careful than single men. Would a misstatement by an applicant for employment that he was married, while he was single, make him a trespasser? The case is the same with a railroad company as it would be with any other person or corporation employing men. A farmer might state to an applicant for work upon his place that he would not employ a man unless he was 21 years of age. It does not seem to me that a misstatemen f by a laborer seeking employment under those circumstances, as to his age, would make him a trespasser upon the farmer’s land and deprive him of his rights growing out of the relation of master and servant.

Baldwin falsely stated his age to the railroad company to-be 21 when he was only 16, but he entered into the employment of the company; he was actually in their service at the time of his injuries, and in our opinion is to be treated in-■this case as an employe, and not as a trespasser. If the railroad company suffered any damage on account of Baldwin’s misrepresentation or fraudulent statement, if it may be called such, it would be entitled to set that up against him in an action for wages, or to bring a suit for damages. It is ■held everywhere that an infant is liable for his torts.

Having represented himself to be of age, he is to be judged by the same rule of negligence as an adult, and that rule was laid down in the trial of the case below. If he was guilty of any negligence contributing to his injury, his youth or inexperience would not excuse him. He is to be judged by the same rule as a man 21 years'of age and over, and was so judged in the trial of the case.

And this brings us to the question as to whether the railroad company was guilty of any negligence toward Baldwin, which was the proximate cause of his injuries, and whether, on the other hand, Baldwin was guilty of any contributory ■negligence which would bar his recovery.

Counsel for plaintiff in error insist that the record shows hat the railroad company was guilty of no negligence in its •treatment of Baldwin, and that upon the undisputed facts he was guilty of negligence which contributed to his injury.

The bridge where Baldwin was injured is situate just west of the Union Depot in the city of Cleveland. It is an overhead bridge passing over the main track between the depot and the river bridge. As I have said, Baldwin was injured on the 28th of February, 1893. He then lacked about three months of twenty years. He had been in the employ of the railroad company at this time nearly three years, as switchman and brakeman, and for a period of three months had been making the run between Collinwood and Linndale practically every night, acting as head brakeman on a freight train which made this run, and on each trip he passed under this bridge, so that he was well acquainted with its location and had passed under it hundreds of times, .going back to Collinwood each morning after making the trip the night before. On the 18th of February, prior to the accident, a written notice was sent out that repairs were about to be made upon this bridge. We find from the record that this notice was given to Baldwin in person, and is fin the following words:

The Lake Shore & Michigan Southern Ry. Co.
Toledo Division.
Office of Superintenent.
Cleveland, Ohio, February 18th, 1895.
To all concerned.
Repairs are about to be made to the overhead bridge just west of Union Passenger Depot, Cleveland, and during process of this work, the head room will be reduced so that it will be about 18 feet 6 inches clearance to the underside of floor beam.
Please be governed accordingly in passing under the bridge.
J. K. Russell, Superintendent.

The testimony is conflicting as to when the repairs wer© commenced after the notice was given. The man in charge of the repairs testified that they were commenced very soon, perhaps the next day, and on the 22nd or 23rd of February, five or six days before the accident,’ the stringer or beam which struck Baldwin’s head had been put in place, to support the bridge while repairs were going on This stringer was about 16 inches through, lowering the bridge that much. Before this change was made, the bridge was perfectly safe for all brakemen and employes. Baldwin testified that he noticed no repairs being made in the bridge until after his injury; and the testimony of some of the other witnesses, among them the engineer on the train, is to tibe same effect. Baldwin testified that he passed under the bridge the morning of the day he was hurt.

No other precaution was taken or warning given by the company besides the written notice to which I have referred. The jury by their verdict found that the railroad company did not exercise ordinary care in the notice and warning given, and this finding, counsel for plaintiff in error insist, is clearly against the law and the weight of the evidence. In our judgment this court would not be warranted in disturbing this finding of the jury.

The bridge,until this change was made, was perfectly safe.

An overhead bridge which is not high enough for a mam on top of cars to pass under, creates a danger which is a continual menace to the life of the railroad brakeman.

The change that was made in this bridge subjected Baldwin to a greatly increased peril in making this trip, and ■till© railroad company was bound to use all reasonable means -aad precautions to warn him of this new danger.

It will be observed that the notice that was given, did mot notify him of the number of inches or in what manner iEse bridge would be lowered. It simply notified him that *The head room will be reduced so that it will be about 18 feet 6 inches clearance to the underside of the floor beam. ” A more definite notice might have been given. Other pre- ■ cautions might have been taken. A red light might have been placed at the bridge, or temporary whip lash screens ■ ot tell-tales, as they are called, erected, thus giving immediate notice at the time to the brakeman that he was approaching the bridge which had been lowered,

It is impossible to discuss the negligence of the plaintiff in error without at the same time considering the question of contributory negligence on the part of Baldwin. The two must be considered together. Baldwin had received notice, the notice that I have referred to, that repairs would be made to the bridge. It is claimed by counsel that from that time he should have looked out for any change that might be made; that he was notified that the head room would be reduced, and knew the peril that he would be subjected to; that he had made this trip a great many times, knew where this bridge was located, and must have known that he was approaching it at the time that he was injured.

Glenn Baldwin, however, had his duties to perform as a brakeman upon this train. He was the head brakeman, and at the time of his injury was standing on the fifth car from the engine. The hind brakeman was at the rear end of the train, where his duty required him to be, At this point there is a curve in the read, and it was Baldwin’s duty to watch the rear end of the train and be in a position to see any signal that might be given by the rear brakeman that the train had broken in two. As he approached this bridge, he was standing with his face toward the lake watching the rear of the train, with the left side of his head turned towards the bridge. The train was going quite fast. ■He was intent upon the work that he was doing, which was •required by the rules of the company. He did not think of this bridge or the danger that he was approaching, but can it be said as a matter of law that on this account he was guilty of contributory neglience? We think not, and in this conclusion, in our judgment, we are fully sustained by the authorities. It was the right of the railroad company to make the repairs in this bridge. Of this there can be no question. But while they were being made, it was the duly of the company to protect its employes from the increased, danger caused by such changes. The fact that this bridge was safe before the changes were made; that Baldwin had passed under it a great many times in safety, only made it the more likely that he would forget the proposed repairs and suffer injury accordingly.

The railroad company did not undertake to give Baldwin immediate notice of his danger at the time he was approaching the bridge. It was at night, and his duties were such that they demanded his exclusive attention, and he cannot be charged as a matter of law with contributory negligence because he did not retain constantly in his mind the fact that the bridge was about to be changed and lowered, or that this had already been done, if such was the fact, to his knowledge.

I cite on this proposition 42 Wis., 599:

“The safety of railroad trains depends largely upon the exclusive attention of those operating them, to the track, and to the trains themselves. It is not for the interest of railroad companies or of the public' — with like, if not equal, concern in the safety of trains' — -that persons so employed should be charged with any duty or necessity to divert their attention. And it appears to us very doubtful whether persons operating railroad trains, and passing adjacent objects in rapid motion, with their attention fixed upon their duties, ought, without express proof of knowledge, to be charged with notice of the precise relation of such objects to the track. And even with actual notice of the dangerous proximity of adjacent objects, it may well be doubted whether it would be reasonable to expect them, while engaged in their duties, to retain constantly in their minds an accurate profile of the route of their employment and of collateral places and things, so as to be always chargeable as well by might as by day with notice of the precise relation of the train to adjacent objects. In the case of objects so near the track as to be possibly dangerous, such a course might well divert their attention from their duty on the train, to their own safety in performing it. Notwithstanding some things said in some cases, cited for the appellant, we should be rather inclined to think that in the absence of express notice of immediate danger, employes operating trains may perform their duties under an implied warranty that they may do so without exposing themselves to extraordinary danger -r that is, danger not necessarily incident to the course of their employment.”

This doctrine has been recognized by our own supreme court.

I cite Snyder v. Railway Co., 60 Ohio St., 496:

‘‘We are of the opinion that testing the question by the allegations of the petition, it can not be said that the company did not owe Snyder the duty of giving warning of the . approach of the freight train. The deceased, with knowledge of the company, and by its orders, was engaged in a duty which required him to be upon the main track, and thus in a place of danger. Strict attention to the work in which he was thus engaged might have been inconsistent with constant watchfulness as to approaching trains. It is not impossible that this may have been the case, and it does not appear from the petition that it was not. If it were then, under the holding of this court in Railway Co. v. Lavalley, 36 Ohio State, 221, and in Railway Co. v. Murphy, 50 Ohio State, 135 (where it is held that it is the duty of a railroad company to make such provision for the safety of its employes as will afford a reasonable protection against the dangers incident to their work), the company should have taken reasonable care for Snyder’s safety, and a failure to perform the duty was negligence on the part of the company. ’ ’

A New York case is directly in point, 136 N Y., 302. This was a case where a brakeman was struck by a low bridge and injured. Ho had been over the road many times, The tell-tales or whip-lash screens which had been erected, had gotten out of repair, but the brakeman had full knowledge of the bridge and its condition. The courj. say in the syllabus:

“A brakeman on top of a moving train, as matter of law„ is not chargeable with negligence, simply because he does not constantly bear in mind the precise location where his train and where every bridge over the track is.
“Plaintiff, a brakeman in defendant’s employ, whii® standing on top of a freight car on a moving train, wagi struck by a low bridge and injured. In an action to recover damages these facts appeared: It was plaintiff’s dutj to be on top of the cars, among other things for the purpose of keeping watch to see that the train did not pari There were fifty four cars in the train, and two brakemea upon it; at the time of the accident the train was at a place where there was a reverse curve in the road, and more than ordinary risk of its beaking. Plaintiff was standing with his face to the rear of the train in a position most effectually to discharge his duties; he had been in defendant’s employ for several weeks, and knew of the existence of th© bridge, but was not at the time aware that he was approaching it. and had no warning of the danger. Defendant had, in compliance with the statute (chap. 439, laws of 1884} erected warning signals called tell tales, to warn brakeme® on the top of cars of their approach to bridges. The on® at this bridge was out of order so that it gave no warning. Held, That plaintiff was not, as matter of law, chargeable under the circumstances with contributory negligence, because he did not take notice of the fact that he was approaching the bridge; also that defendant was guilty of negligence in not keeping the tell-tale in order ”

I quote from Shearman & Redfield on Negligence, volume 1, section 200:

“And the natural presumption that a man under such circumstances either does not know or has excusably forgotten the danger, is so strong, that clear evidence should fee required to rebut it. Such a case differs widely from those cases in which men risk leaping on or off a train. There the chances are in favor of safety. In the case of a low bridge, the failure to stoop involves absolutely certain injury. .There is no chance for any other result. It is impossible that any sane man not intending suicide should knowingly take such a risk. It is not at all surprising that brakemen should often forget that a bridge is dangerous, or fail to see that they are near it. The marvel is that men ander such circumstances, ever remember it in time, especially at night. They can only do so by the exercise of extraordinary care, which they are never bound to exercise.”

Dickey, Brewer & McGowan, for Plaintiff in Error.

J, F. Herrick and Herrick & Hopkins, for Defendant in Error.

We hold that this record does not show, as a matter of I'aw, that Glenn Baldwin was guilty of contributory negligence, nor is the finding of the jury that the plaintiff in error did not exercise ordinary care toward him contrary io law or against the weight of the evidence.

We find no errors in the record, and the judgment of the court of common pleas is therefore affirmed.  