
    (Sixth Circuit—Lucas Co., O., Circuit Court
    September Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ
    The L. S. & M. S. Railway Company v. James H. Winslow.
    1. In a civil action against a railway company for damages for injuries claimed to have been suffered by the plaintiff on account of the alleged negligence of the company in failing to block a certain point in a switch in the yard of the company, the question whether it was practicable or proper to block the place in question, and whether the company was negligent failing to block the same, is for the jury.
    2. If it appears that the plaintiff, some weeks prior to the injury complained of, knew of the defect, it is competent for him to show information received by him prior to his injury reasonably tending to induce him to believe that the defect had been remedied.
    3. A request by the railway company in such case, that the court charge a certain proposition, is rightfully refused if the proposition ignores a material claim of the plaintiff upon which he has offered any substantial proof.
    4. Where the plaintiff in such action was a yard-switchman in the employ of the company, and was under the direction of the assistant general yard-master who had the general control and charge of the use of the yard tracks and of the movements of cars thereon, a complaint by him to the assistant yard-master, a short time prior to the accident, of he unlocked condition of the switch in question, and a promise to him by the assistant yard-master that the same should be blocked, is proper to be considered by the j ury upon the question whether the plaintiff, having knowledge of the defect, assumed the risk of injury therefrom by remaining in the employ of the company, although the assistant yard-master did not have “the direction, control or charge of the tracks or of their maintenance or repair. ” (Ehmcke v. Porter, 45 Minn. 338, distinguished. )
    5. Amount of verdict (§7,000), whether indicating passion or prejudice, considered.
    Error to the Court of Common Pleas of Lucas County.
   Bentley, J.

James H. Winslow recovered a judgment in the Court of common pleas against the Railway Company, for seven thous- and dollars, for an injury received while he was in the employ of the company, caused by getting his foot caught in a switch, at a point named, which switch was unblocked; and being held there, so that certain cars ran over his foot, causing him to be permanently lame and crippled.

As we understand it, the question as to whether the verdict was sustained by sufficient evidence, except, as to its amount, is not presented for our consideration. It is a case, however, where a sharp controversy is presented between the views of counsel on both sides, as to the duty of the railway company to cause the switch in question to be blocked at the place where the injury occurred. It is said that it appears that Mr. 'Winslow’s foot was caught at substantially the same place where the foot of one Calkins was caught and held until he was killed by the cars running over him, or injured so that he died, and the action regarding which injury, was decided by this court in January, 1892, and the judgment against the company, in that case, was affirmed. A large part of the record-is taken up with testimony bearing upon the question of the duty of the railway company to block the switch at that point where the movable rail comes up to the fixed rail as a part of the switch, in what is called a split switch. The movable rail, when the switch is closed, is placed and held tightly to the fixed rail, and when the switch is opened, the movable rail is removed by the action of the switch machinery, from three and one-half to four inches away from the fixed rail. The railroad company in this case, has strenuously urged that, as to a space of this kind, the statute requiring the blocking of guard rails, switches or frogs, does not and should not apply; that it is impracticable to block a space of this kind, and thus render it safer for the employes about the switch having duties to perform there ; and, furthermore, that even if the block might possibly be thought by some to render it safer for a switchman employed there, there would be far greater dangers .presented by reason of this blocking, to the trains which should pass over the switch, there being great danger of derailment by reason of the block and foreign substances getting between the block and the rails, so that when the switch is closed, or when the standard should indicate that it was closed, the end of the movable rail wmuld not be held tightly against the fixed rail, so that the flanges of the car wheels coming along there, instead of being deflected from the fixed rail on to the movable rail, would pass between the opening thus left — between the point of the movable rail and the fixed rail, and disastrous consequences would be likely to result. As we understand it, in this case, the question as to whether or not the evidence was sufficient to prove that the. company is in duty hound to block at this point, is not presented; but if we are in error as to that, we might say that there is testimony upon both sides of that question in this record here, the plaintifl producing some testimony that this place may be blocked safely and properly with due regard to the safety of trains, etc., and that in some cases, such places have in fact been blocked, and thus used by this'company. On the other hand, the company, by quite a number of apparently very intelligent and experienced witnesses, has given evidence tending to show that it is impracticable and dangerous, and that it should not be held ,to be the duty of the company to block at this point. Of course, with that condition of testimony, it is our duty not to interfere with the fiuding of the jury on that controverted question of fact. It is claimed, however, by counsel for the company, that the action of the court during the trial was erroneous, first, in admitting certain testimony that was incompetent and immaterial, and prejudicial to the railroad company; and secondly, the court erred in refusing certain requests preferred to it by the counsel for the company at the close of the evidence. The testimony which is alluded to is found on pages 68 and 69 of the record.

Before calling special attention to the character of that testimony, I will briefly notice the condition of the pleadings in respect to such matters. In the amended petition of the plaintiff, he departs from the allegation made in the original petition. In his original petition, he had alleged that he had no knowledge that this switch, at the place in question, was unblocked; had no knowledge of the danger to which its unblocked condition exposed him. By the amendment after-wards filed, he says that at some time prior to the accident, he did have knowledge that this particular place was unblocked. The allegation in- that respect being short, I will read it:

Plaintiff says at the time of the accident, he was ignorant of the fact that the frog was unblocked or unfilled, although some time prior to said occurrence, he had been cognizant of such fact, and had informed the company and-the officers thereof, who were his superiors and had charge of said yard, of such condition, and the promise had been made by his superiór'officers and representatives of the company in charge of the yard, to him, that the frog would be filled and blocked, and the plaintiff continued in the employ of the company thereafter on such promise.”

This is denied by the railway company in its answer. It will be.seen that, by this amendment, he admits that at some time prior to the accident, he had knowledge of this condition, but avers that at the time of the accident, he had no knowledge that the switch had remained unblocked and unfilled-; that is, between the time of his finding, or knowing that the place was unblocked and unfilled, and the time when he was injured, he had had the promise of the company’s officers that it should be fixed and filled. He had testified himself prior to the giving of the testimony on pages 68 and 69, by the other witnesses, that he had called the assistant-general yard master’s attention to this unblocked condition of the switch, and that that officer had promised him that he would have it fixed. He says himself, also, that a short time before the accident, he had seen some of the company’s, men who were engaged in blocking frogs and switches, at work about this place here in question, and that he supposed at the time of the accident that it had been in fact fixed ; that is, blocked or filled.

This accident occurred to him on the 25th of August, 1891, and the testimony objected to on pages 68 and 69, was the testimony of John T. Atkinson, a railroad employe. Mr. Atkinson says that at that time there were men who had come with blocks, and were engaged generally in putting in blocks along tie company’s tracks ; that at that time, they were working somewhere in the vicinity of the switch in question ; that he called the attention of the plaintiff below to that, and made the remark that “ they were doing a d — d good job up there,” or some such expression; and that is the testimony which the court allowed over the objection of the counsel for the railway company. Mr. Atkinson was not certain as to just when this occurred, but he gives it as his impression and belief that it was either in the latter part of July, or the first of August, 1891. He says that he thinks he left the yard on the 20fch of August, and that it must' have been prior to that time. His testimony is tolerably direct that it was either the latter part of July or the first of August; whether'he meant the first day of August, or the first part of August, is not entirely clear. Thecourtadmitted that upon this idea,tbat it was proper and competent for the plaintiff to say, notwithstanding he had prior knowledge that this place was unblocked, that such circumstances had occurred as led him to believe that it had been fixed, or perhaps that the promise of the assistant yardmaster had been complied with, and the court held that that would be competent testimony as bearing upon the question of the state of mind of the plaintiff at and just before the time that the accident occurred ; that is, that his belief in the matter, founded upon such circumstances as had come to his attention, might bear upon the question .of his own care, or want of care, in doing as he did on the occasion of the injury.

Now, in general, we think that that testimony would have been proper, if it had borne upon the real question. As it stands, it seems as. if it would have very little practical effect, because'the plaintiff testifies that he had made complaint of this unblocked condition of the switch several times to this yardmaster; that some days or weeks intervened between the occasion when he called the yardmaster’s attention to it, (on which occasion the yardmaster or the assistant yardmaster had promised that the matter should be remedied), and the time of the accident. His testimony indicates that the last of these conversations was comparatively a short time before the accident to him, and we should judge from the testimony that such a conversation probably occurred between the last of July or the first of August, and the accident. So that, if it were a mere matter of weighing the testimony, we should think that it would be fairly inferred from the record that this conversation with Mr. Atkinson occurred prior to the time when he had last called the assistant yardmaster’s attention to the defect; so that, if that were so, the testimony would have no real bearing upon the point actually in controversy. But the court admitted this, and as the time of this occurrence was not definitely fixed, we think it would not be allowable for a court of error to say that the introduction of this testimony was absolutely erroneous on account of the time. Peradventure, from all that may have been said by Atkinson and the other witnesses, this conversation may have been later than he was inclined to think it was, he not being definite upon it; and also, there was room for a divergence of idea as to just when the last conversation with the assistant yardmaster occurred ; so in view of these circumstances, we think it cannot be said that the introduction of this testimony was error, prejudicial to the plaintiff in error.

The other questions presented, as I say, relate to the instruction of the court to the jury. On page 168, it is shown that a request for an instruction to the jury was presented by the counsel for the defendant below in these words :

“2nd. If the jury find from the evidence in this case, that the plaintiff knew, or by the exercise of reasonable care and caution on his part, in the performance of his service, he should have known of the perils of the switch, and thereafter remained in the service of the company, he took upon himself and assumed the risks and perils of such service.”

If the court had given that request to the jury, it will readily be seen that all the contention of the plaintiff regarding any rights that he had, based upon this promise to remedy this defect, would have been of no avail. It leaves out of consideration anything that might be claimed for him in this regard, and if given by the court, would place the court in the position of holding that all the testimony bearing upon this whole question of the promise of the assistant yardmaster had no effect whatever in favor of the plaintiff. We think the court might have refused this request on that account; and then further, this request says that, “if the jury find from the evidence in this case that the plaintiff knew, or by the exercise of reasonable care and caution on his part in the performance of his service, he should have known of the perils of a slip switch, and thereafter remained in the service of the company, the took upon himself these risks,” etc.

Now, the plaintiff may have known, of course, he being chargeable with knowledge of the general perils of a slip switch, that there might be some dangers connected with it, .and yet, as to this particular one — as to the particular danger by which he claims to have been injured in this case, he might not be properly held to have assumed the risks. For instance, if it was a fact that this switch could have been blocked, and ought to have been blocked by the company, and although he knew at one time it was not blocked, and the assistant yardmaster promised that it should be blocked, and he, at any rate, supposing, and having reason to suppose, that at the time in question it had been blocked, this instruction would have been erroneous, as applied to this particular'case.

The 13th and 14th requests by counsel for the railway company, were also refused. The 13th reads as follows : “ The plaintiff complaining to the assistant yardmaster of the unblocked condition of the movable rail of the switch in question, and his, the yardmaster’s, promise to have the same blocked, will not bind the company therefor, unless it appears that the assistant yardmaster had the direction, control or charge of such track or tracks, and of their maintenance and repair.”

The 14th request is as follows: “The plaintiff complaining to the assistant yard-master of the unblocked condition of the movable rail of the switch in question, and his, the yardmaster’s, promise to have the same blocked, will not bind the company therefor, unless it appears that the assistant yardmaster had the direction, control and charge of such track or tracks, or of their maintenance and repair.”

It will be seen that the only difference between the 13th and 14th requests is made by the use of the connectives “ and ” and “or”, differently in one from that in the other. But the proposition presented by the company in these requests is this •• That even if the plaintiff had complained to the assistant general yard-master of this condition, and although he may have been the superior to the plaintiff as to matters of his duty in the yard ; and although the assistant general yard-master may have had general control of the cars and the switching of cars, and all the direction of the men employed at that work, yet a complaint to him and a promise by him to block this switch would in no wise bind the company, or operate to the advantage of the plaintiff in an action of this kind, unless the assistant yard-master also had the care and control of the tracks themselves, and the authority to keep them in repair. That is, he must either have both of these duties to perform — that is, he must have the control or charge of such track or tracks, and also of their maintenance and repair, or at least, it is claimed, he must have had control and charge of such track or tracks, or of their maintenance and repair. That unless he did, a complaint to him and a promise by him would be of no moment, 'and he would not thereby be representing the company as to the particular matter.

The case in the 45th Minnessota Reports, p. 338, is presented as sustaining the views of the railway company in this regard, and the 40th Ohio St., p. 148, is also another authority. The syllabus of the Minnesota case is as follows:

“A servant whose duties require him to work in a place known by him to be unsafe so that he would otherwise be taken to have assumed a risk, cannot relieve himself from such assumption of risk by showing a promise to make the place safe by one other than his master, unless that other person had authority to determine what should be done for the safety of those employed in the place and the duty to have it done.”

In that case the defendant was a single individual, having a mill about which the plaintiff in that case was employed; and there was a dangerous condition about the place; when certain parts or appliances were not in position, it left a hole in the floor, in a dark sort of place where a party passing along would be liable to fall in and be injured, and that some person in the employ of the mill owner, about the mill, in adjusting matters on a particular occasion, had left this place in the floor uncovered. The plaintiff in the case started to go. through that passage, and, it being dark, he had a lantern. His lantern went out before he had reached this dangerous place, but notwithstanding that, he continued on, and fell into this place, and was injured. It seems that he had been employed about the mill for quite a long time, and was perfectly familiar with his situation and the liability to this danger. There was a party employed about the mill making different repairs that he was ordered to make, and the plaintiff, prior to the accident, hqd called his attention to this, and suggested that something by way of a guard ought to be placed over this hole so that, if its covering should be removed, a person would not fall into it and be injured, and this party had indicated that he would attend to the matter, or do something of the kind. But the difference between that case and this as to facts and and rules applicable to it is this, in part, at least: The millwright or repairer, in the Minnesota case, who had suggested that he would fix that place, was not in any sense, or in any way or manner, the superior of the plaintiff in that ease. Neither had he any duty to perform as to making such repairs of his own motion; but he was simply to make such repairs as those in charge called his attention to from time to time and ordered him to do, so that as to the plaintiff he in no wise stood in the place of the common master, and did not represent the master. Now, in that case, with those facts presented, the court held that notice to such a man was not notice to the master, and did not excuse the person who had full notice and knowledge of the danger, from looking out for his own safety.

We think another rule applies to the case in question here, that is, that although the assistant yard-master may not have had. the duty to repair the tracks, or the general duty to supervise their construction or repair, yet in the use of them, he was the immediate superior of the plaintiff in this case. He says that in whatever he ordered the plaintiff to do in the line of switching and moving cars, etc., the plaintiff was bound to obey him, and that on the particular occasion in question, the plaintiff was obeying one of his direct orders.

Now, being the superior of the plaintiff, he had at least, control of the movements of the plaintiff, and in case his attention had been called to the dangerous position, and he directly sent the plaintiff there to work, he might have been guilty of negligence himself, and thus charged the company with the results of his negligence. It-was competent for him, in view of the dangerous situation which he knew, to have refrained from ordering the plaintiff .to perform work in the vicinity of this danger until this repair had been made, no matter by whom; and in case the facts are as the plaintiff claims, not only should he have refrained from ordering the plaintiff there, but he should, in- the general direction of matters about the yard over which he had full control, have so ordered things that in the course of the business which the plaintiff was called upon to perform, he would not necessarily and naturally be brought to do this.

We are clearly of the opinion that, although this man, himself, would not have been the man to actually put iu the block there, yet, having charge of all the operations of the yard which might subject the plaintiff to danger, it was his duty, having this information, and having made this promise, to see that it was done before he ordered the plaintiff there, and in this respect he stood in the.place of the master.

There are difficulties suggested that would arise in case the views of the defendant’s counsel should prevail here; that is to say, the plaintiff would be subject to the duty of either seeing some general track-master, or some section boss, or some person who had special charge of these matters, and whose duty it was to make repairs and changes; and the plaintiff being under the direct control of the assistant yardmaster, it might be exceedingly questionable whether there would ever come a time that the plaintiff would be justified in leaving his work and seeking other persons, who were perhaps not in that vicinity, and who might not be accessible to him anyway. But, however that might be, we think that the rules of law applicable to the case are, as we have stated, that it is not a question as put in these requests — whether the assistant yard-master was the person who should actually do this work, or whose duty it was to see that it was done; but that, being the immediate superior of the plaintiff in his operations around that yard, and having general charge there, and having made this promise, it was sufficient to excuse the plaintiff, if afterwards, in the exercise of proper caution and care himself, under all the circumstances, he remained in the general employ of the company at that place. That is, that under such circumstances, it did not necessarily become the duty of the plaintiff to quit the company's service; that he might still remain without actually taking upon himself the risks of this danger. There would still remain, however, the duty upon the plaintiff to exercise reasonable care and caution, under all the circumstauces of the case, and although he did not take the general risks which this general danger presented, of course, he could not himself be actually negligent upon any particular occasion and thus suffer injury, and still hold the company liable. But if these requests had been given, however cautious the plaintiff may have been upon the particular occasion in question, although he might have used extraordinary care and caution, he would have been held to have taken the risks of remaining in the employment of the company and of any injury resulting from this' defect.

The plaintiff on this particular occasion, it seems by the proof, did not voluntarily walk along at this dangerous place,, and without thinking of the danger, put his foot in the narrow place and thus get caught. But he was doing his work some distance from there — he thinks about twelve feet — before he gave the signal to the engineer to slack back that he might pull the pin in uncoupling the cars, a duty that he might have performed within a very short distance, probably a foot or two, without any considerable motion to one of the cars , but, contrary to his expectation, the engineer backed suddenly and violently, and the plaintiff, having hold of the car with one hand, was thus thrown in the direction of the movement of the train, and before he could right himself up,, he was over this particular dangerous place, and his foot went into the frog or switch and was caught.

E. D. Potter, Jr., for plaintiff in error.

Hamilton & Ford, for defendant in error.

There might still be left the question to the jury,-whether the plaintiff, in view of all that he knew and heard, was at that particular time in the exercise of due care and caution in doing that thing ; but that is not here presented. So, upon the questions that are presented and argued, finding against the contention of counsel for the plaintiff in error, the judgment will be affirmed.

The verdict was quite a large one, it is true, for the injuries sustained. It is a larger verdict than, in times past, we think would have been given ordinarily for such an injury. But it is not larger than quite a number of verdicts in substantially similar Jcases, and which we have been called upon to pass upon, and which we have affirmed. We think it can hardly be said that, in view of the serious and permanent injury, the jury in awarding seven thousand dollars, acted under the influence of passion or prejudice, or that they acted in such utter disregard of the testimony as to the extent of the injury and all, as would warrant us in saying that they acted under any misapprehension ; so that, as I said, the judgment will be affirmed.  