
    NEGLIGENCE — RAILROADS—ERROR—TRIAL.
    [Richland (5th) Circuit,
    1907.]
    Taggart and Donahue, JJ.
    (Judge McCarty not sitting.)
    Baltimore & O. Ry. v. Maggie M. Collins, Admx.
    Erroneous Charge in an Action eor the Violation! oe Lan. Rev. Stat. 5421 (EL 3365-14).
    It is error for a court, in an action for damages against a railroad company* for wrongful death of an employe, caused hy the alleged keeping of a crew on duty over time in violation of Lan. Rev. Stat. 5421 (B. 3365-14), to-charge that, “If the train on which Grimes was conductor was delayed at Sherwood hy reason of an accident occurring to its engine, that statute.which I have, read to you has no application to the facts in this case, unless you find that the defendant, -knowing that said Grimes had been oa duty for more than fifteen consecutive hours, could have reasonably provided, in the due and proper operation of its trains, other servants competent to relieve said Grimes and his crew.”
    [Syllabus approved hy the court.]
    Error to Richland common pleas court.
    Cummings, McBride & Wolfe, for plaintiff in error.
    Sidles, Green & Skiles, for defendant in érror.
   TAGGART, J.

The defendant in error filed her petition in the court of common pleas of this county, alleging that she was the administratrix of the estate of James W. Collins; that he -met his death while in the employ of the Baltimore & Ohio Railroad Company on the morning of December 28, 1904, near Sherwood in the state of Ohio; that the death of said James "W. Collins was caused through the negligence of the defendant company in that it permitted and required a certain conductor Grimes, and his crew to be on duty for more than fifteen consecutive hours, to wit: forty-eight hours, without relief and without at least eight hours rest, in violation of Lan. Rev. Stat. 5421 (B. 3365-14) ; that the defendant below had full knowledge that said Grimes and his crew, at and! prior to the time of said collision, bad been on duty at least thirty-six hours without rest or sleep or relief; and that in consequence' of the-extreme cold and by reason of said Grimes and his crew’s being tired, weary and exhausted in consequence of said continuous duty and service,, and loss of sleep and rest, they were incompetent to perform properly-the duties devolving upon them, and that while in that condition, the-conductor Grimes negligently and carelessly opened -the switch and permitted the same to remain open; that the train upon which the deceased was employed was wrecked and his death was caused.

She avers that the company had full knowledge of the violation of' said statute and of the condition of said Grimes, and she prays a recovery.

The answer of the company is, in substance, a general denial with the plea of contributory negligence. On a verdict’s being returned in favor of the defendant in error and a judgment rendered thereon, this proceeding to reverse said judgment was instituted.

Numerous errors are presented for our consideration as to the admission of evidence. The only error of substance that we discover in this record on the admission of evidence is found in the bill of exceptions on page 74. The witness, W. A. Miller, was introduced on behalf of the plaintiff and testified that he was a member of the crew of the relief train which was sent out on the night of the accident. He was inquired of as to whether he had seen Grimes after that, and he answered, “Yes, sir.” This was after the accident occurred. He was then asked: “What did you hear him say?” This was objected to and overruled, the court permitting the answer: “Well, all I heard him say was, ‘I don’t know how I came to leave that switch open.’ ” Here was a declaration permitted to go to the jury as having been made by the conductor, Grimes, of an admission that he had left the switch open which caused the accident. We think that this was prejudicial error. .

In respect to the charge of the court,, it is claimed that this violates the rule in the case of Baltimore & O. Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. Rep. 1071], but we think the court clearly defined the issues in this case, as shown on pages 157 and 158 of the bill of exceptions. The fact that he designated one issue in this case as the real issue is of no prejudice to the plaintiff in error. The defendant in error might complain if there were several issues upon which she might be entitled to recover, and the court singled out one issue and designated it as the real issue. She might complain but the defendant company has no ground to complain as to this action of the court.

The defendant company requested the court to charge the jury as follows:

“Any company operating a railroad over thirty miles in length in whole or in part within the state shall not permit or require any conductor, engineer, fireman or any train man on any train, who has worked in his respective capacity for fifteen consecutive hours again to be required to go on duty or perform any work until he has had at least eight hours’ rest, except in cases of detention caused by accident, unavoidable ■or otherwise.' •
“The above statute does not apply to this case, no difference how long the time occupied by Grimes in his run from Deshler to Garrett, unless the defendant company had either permitted or Required Grimes' to undertake this run without at least eight hours’ rest subsequent to the next preceding run and not then unless the jury find from the evidence that such next preceding run occupied more than fifteen consecutive hours of time.”

We think that this request states the law 'governing this case and should have been given. The court, however, on page 160, instead of giving this charge, gives the following erroneous instruction to the jury:

“If the train on which Grimes was conductor was delayed at Sherwood by reason of an accident occurring to its engine, the statute which I have read to you has no application to the facts in this case unless you find that the defendant, knowing that said Grimes had been on duty for more than fifteen consecutive hours, could have reasonably provided, in the due and proper operation of its trains, other servants competent to relieve said Grimes and his crew.”

This charge is erroneous in that it instructs the jury that if said Grimes had been on duty more than fifteen consecutive hours, notwithstanding his train was delayed by accident, yet if the company could have reasonably provided, in the proper operation of its trains, other servants competent to relieve Grimes, and failed to do so, it would be guilty of negligence. We think this is clearly erroneous and unwarranted by the section of the statute under consideration.

The court also, on page 159, places, as we think, a wrong construction of said section of the statute for he, in effect, instructs the jury that more than fifteen hours’ service on a continuous trip, without eight hours’ rest, would be a violation of this statute. This, we think, is clearly erroneous and prejudicial.

For the errors indicated in the admission of testimony and for the misdirection of the court to the jury as indicated, the judgment of the court of common pleas will be reversed, the cause remanded for a new trial and further proceedings according to law. Exceptions noted.

Donahue, J., concurs.  