
    Burke v. The Michigan Central Railroad Co.
    
      Negligence — Failure to support averments of petition — Duty to direct verdict-—At conclusion of plaintiff’s evidence, when — Failure to properly place push-pole — Duty to look for obstruction on railway tracks-—Interstate or intrastate employment — Interrogatories to pleading — Answers thereto determinative, when.
    
    (No. 15339
    Decided July 3, 1917.)
    Error to the Court of Appeals of Lucas county.
    The original action out of which this proceeding in error grows was brought by William Burke in the common pleas court of Lucas county, to recover from The Michigan Central Railroad Company damages for personal injuries suffered by him while in the employ of that company.
    For a first cause of action the plaintiff averred facts constituting a cause of action under the Employers’ Liability Act of Ohio, and for a second cause of action adopted each and all of the allegations in his first cause of action and further averred that the defendant was engaged and the plaintiff was employed in interstate commerce.
    The petition averred that the defendant was negligent in placing a freight car too close to the passing track, so that one end of a push-pole lying athwart the pilot of the engine .on which the plaintiff was riding came in contact with a stirrup on a box car, causing the other end to fly up and strike the plaintiff on the back of the head, producing the injuries complained of; that the defendant negligently allowed a young and inexperienced fireman to run its locomotive; that the locomotive was negligently operated; and that the engineer in charge and the fireman running said locomotive failed to use ordinary care to observe the projecting corner of the box car, and negligently continued to move the locomotive past the car, after plaintiff had taken his post on the pilot, thereby placing him in peril which he could not escape.
    The defendant for answer to the petition admitted its corporate capacity, and admitted that at the time named in plaintiff’s petition it was engaged and the plaintiff was employed in interstate commerce. It admitted that the plaintiff, while riding upon the front of the switch engine working in its yard, was struck and injufed, but denied the character and extent of the injuries as pleaded in the petition, and particularly denied each and evety allegation of negligence therein charged against it; and, further answering, averred that at the time plaintiff received his injuries he was guilty of negligence which contributed directly and proximately to cause his injury, in this, to-wit, that as head switchman the plaintiff at the time had full charge and control of the push-pole, well knowing that the defendant had provided a safe place and facilities for carrying this push-pole at the side of the tender to said engine, where the rules of the defendant, with which the plaintiff was familiar, required this push-pole to be carried when not in use; that plaintiff voluntarily, and without any reason or necessity therefor, placed this push-pole across the front of the engine, where same was apt to and did jostle to one side and strike the car standing upon the sidetrack, and that, without the knowledge and direction of the defendant, plaintiff voluntarily and without reason or necessity therefor rode upon the front of the engine, in front of the push-pole, when the engine was moving, and was thereby struck and injured. And the defendant further averred that the plaintiff in placing the push-pole across the front of the engine, and in riding in front thereof upon the engine, assumed the risk of being injured thereby, and that the plaintiff’s, injuries resulted'from the hazards and dangers incident to his duties, which he assumed as part of his contract of employment.
    The plaintiff in reply denied each and every allegation in the answer, except such as admit or deny the allegations set forth in plaintiff’s petition in his first and in his second cause of-action, respectively; and to this reply plaintiff annexed certain interrogatories, numbered one to five, which he asked that defendant be required to answer. The interrogatories and answers are as follows:
    Interrogatory One.
    What, if any, record, is in the possession or under the control of the defendant, made and kept in the regular and ordinary course of defendant’s business, for the purpose of showing, among other things, and purporting to show, among other things, the description, origin and destination of shipments, which plaintiff and the said switching crew were engaged in handling at the time plaintiff was injured ?
    Answer.
    I have in my possession and subject under my control, a record showing, among other things, the description, origin and destination of shipments which the plaintiff and the said switching crew were engaged in handling at the time plaintiff was injured.
    Interrogatory Two.
    Of what do such records consist ?
    Answer.
    Such records consist of On Hand Yard Reports, Shipping Orders and copies of Way Bills.
    Interrogatory Three.
    In whose possession, or under whose control or custody are such records ?
    
      Answer.
    Such records are in my possession and subject to my control, other than the On Hand Yard Reports, and such reports are in the custody and control of General Yard Master, E. Holst.
    Interrogatory Four.
    Are you able, by referring to such records, to designate and describe what, if any, of the shipments referred to in interrogatory one, originated at or were destined for some point or points outside the State of Ohio?
    Answer.
    Yes.
    ' Interrogatory Five.
    If you have answered the last question in the affirmative, please designate and describe such interstate shipments, if any.
    Answer.
    Two of said cars were to be loaded and destined to Lawton, Michigan; one of said cars was destined for Monroe, Michigan, and two to Pittsburg, Pennsylvania.
    At the close of plaintiff’s evidence, the defendant moved the court to direct the jury to return a verdict in favor of the defendant, which motion was sustained, to which plaintiff duly excepted.
    Motion for new trial was filed and overruled, and error prosecuted in the court of appeals of Lucas county. That court affirmed the judgment of the trial court, and this proceeding in error is prosecuted in this court to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming the same.
    
      Mr. Ben W. Johnson and Mr. James Nye, for plaintiff in error.
    
      Messrs. Potter & Carroll, for defendant in error.
   By the Court.

No evidence was introduced by the plaintiff tending to prove the defendant guilty of any of the acts of negligence charged in the petition. On the contrary, the evidence offered on behalf of the plaintiff, including his own testimony, shows conclusively that this box car was in such a position upon the siding that the engine would have passed it in safety had the push-pole not projected far enough from the side of the engine to engage the stirrup on the car; that after the push-pole came in contact with the car it pulled it some distance in the direction in which the engine was going, before the opposite end of the pole became loosened from the engine and flew forward and struck the plaintiff; that the fireman was experienced and competent to operate this engine; that he was moving it in a careful and prudent manner, at a speed not to exceed four or five miles an hour; that at all times he had the engine under perfect control; that immediately upon the alarm being given he stopped the engine within a distance of four- or five feet; that he did not know the push-pole was across the pilot of the engine, and could not see it from his position on the right-hand side of the cab; that by reason of his view being obstructed by the front part of the engine he did not have equal opportunity with the plaintiff to observe the location of the box car as the engine neared it; that the engineer was on the fireman’s side of the cab; that he did not know of the location of the push-pole, but perhaps might have seen it bad he looked downward in its direction; that his duty required him to keep a vigilant watch ahead, and not downward in the direction of the push-pole; that at the time of the accident, he was in the strict performance of his duty; that he saw the box car in such position upon the side track that the engine would pass it in safety; that he did not see the push-pole until the accident happened; that the plaintiff was the only person on the forward part of the engine that had any knowledge of the location of this push-pole; that he had himself placed it athwart the pilot of the engine, instead of on the hooks that had been placed at the side of the tender for the purpose of carrying this pole with safety to all the employes connected with the operation of this engine; and that the plaintiff had placed this push-pole in this position for his own convenience, and had voluntarily taken a seat upon the pilot of the engine, directly ahead of it.

In regard to this last particular, plaintiff testified that he had so placed himself upon this part of the engine to look out for anything that was wrong, “switches wrong or any obstruction on the track or, if the cars wasn’t clear we were to keep our eyes open.”

“Q. And that was your duty, of course, in doing that? A. Yes.

“Q. As you went north on the track you could see the car on the left, of course? A. Yes.

“Q. That was one purpose for which you were standing on the front there, to look out for obstructions? A. Yes.

“Q. And as you went north that car was in the clear; at least you concluded it was in the clear, didn’t you? A. Yes.”

Again, on page 121 of the record:

“Q. You were satisfied that there was a safe clearance? A. I was satisfied that there was a safe clearance.”

It clearly appears from the testimony of the plaintiff himself that if this box car were not in such position upon the sidetrack as to permit the engine to pass it in safety, it was his duty to observe that fact and signal the engineer to stop before coming in contact with it. Having placed the push-pole across the pilot of the engine, and being ¡the only employe of the company upon the front part of the engine that had knowledge of the position of the push-pole, it was his duty to himself and his fellow employes to see that the push-pole remained in such position that it would not come in contact with cars on the adjacent track and cause injury to himself or his fellow workmen.

It may have been the custom of the switchmen employed in the operation of this engine to place this push-pole athwart the pilot for their own convenience, but the company had provided a safe place for it to be carried upon the engine, and it was the switchman’s duty to place it on the hooks provided for that purpose.

Regardless, however, of whether the plaintiff was guilty of any negligence directly contributing to or causing the accident, there is absolutely no evidence tending to prove negligence on the part of the railway company.

Where there is no evidence upon a material issue joined by the pleadings it is the duty of the court to instruct a verdict. Ellis & Morton v. Ohio Life Insurance & Trust Co., 4 Ohio St., 628; Village of Leipsic v. Gerdeman, 68 Ohio St., 1; City of Dayton v. Glaser, 76 Ohio St., 471, and Gibbs v. Village of Girard, 88 Ohio St., 34.

The same principle is involved in the following cases: Cornell v. Morrison, 87 Ohio St., 215, and Cincinnati Gas & Electric Co. v. Archdeacon, Admr., 80 Ohio St., 27.

The plaintiff in his second cause of action averred that the defendant was engaged and that he was employed in interstate commerce. The first cause of action contains no averments with reference to the character of the plaintiff’s employment or the nature of the defendant’s business. The defendant admitted the allegations in the second cause of action, that the defendant was engaged and that the plaintiff was employed in interstate commerce. There was therefore no issue joined by the pleadings as to the nature of his employment or the character of the defendant’s business. The admission by the defendant of the averments in plaintiff’s petition dispensed with proof of these averments. If any proof were necessary, the answers to the interrogatories propounded by the plaintiff would, at least in the absence of conflicting testimony, be sufficient to disclose the character of the employment and the nature of the defendant’s business.

It is of no importance, however, in this case, whether the plaintiff was employed in intrastate or interstate commerce. There was no evidence offered by the plaintiff tending to support the averments of negligence in his petition, and for that reason the judgment of the court of appeals must be affirmed. . .

Judgment affirmed.

Nichols, C. J., Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.  