
    Railroad Co. v. Depew.
    Where a locomotive with ears attached is standing on a railroad track near a railroad station or other place where cars are frequently moved forward or backward, a person who goes upon the railroad track, seeing the locomotive and cars, and knowing that they would, within a few minutes, he moved towards him, and walks upon the track away from the train without keeping watch of its movements, when there was nothing to hinder him from seeing the movements of the train in time to avoid danger, and when he could have gone in the same direction without walking on the track, is guilty of such negligence as will prevent his recovery for an injury caused by the carelessness or unskilifulness of the employes of the railroad, not amounting to willfulness on their part.
    A person so walking upon a railroad track is not free from negligence which will prevent his recovery for an injury so caused, if he omits to keep watch of the movements of the train, relying upon a rule or custom of the employes of the railroad, to give a signal for the moving of the train.
    The expectation that such signal would be given does not relieve a person in such situation, from constant watchfulness for his safety.
    Error to District Court of Guernsey Count3r.
    
      The original action was brought in the court of common pleas of Guernsey county, by Abraham Depew against the Baltimore and Ohio Railroad Company for damages for an injury alleged to have been sustained by reason of the carelessness and negligence of the defendant in moving a train of its cars at a place on the railroad called Gibson’s station.
    The plaintiff alleged in his petition that a county road crosses the railroad near the station, and that after a train of cars had reached the station and stopped, the defendant caused the train to be cut and a part of it to approach the crossing and pass rapidly over the same, and negligently and carelessly omitted, while approaching the crossing, to give a signal by bell, whistle or otherwise, by reason whereof the plaintiff was not aware of their approach, and by reason of the negligence of the defendant, the cars struck him and caused the injury complained of.
    The defendant in its answer denied that the injury to the plaintiff occurred from any want of care or by negligence on its part, or that of its employés; but alleged that whatever injury the plaintiff received resulted from want of care, and negligence on his part at the time it occurred.
    The facts material to the issue between the parties as they appear from the record, are that the railroad at Gibson’s station runs nearly east and west. Two county roads cross the railroad, one just east of the station and the other 325 feet further cast.
    There is a side track extending from a point 82 feet east of the east county road, westward to a point about 600 feet west of the west county road.
    Abraham Depew, on February 27th, 1871, arranged with the agents of the company for the transportation of himself and family and his household goods and some live stock from Gibson’s station to Pana, Illinois, and the Company furnished him a car in which to place his property. On February 28 he placed his property in the car for transportation and the car was pushed by the agents of the Company to a point on the side track about midway between the county roads. This car was to be taken into a freight train going west at this station about 9 o’clock A. M., on February 28.
    After Depew had loaded his property in the car, he went to the railroad office at the station and procured the necessary tickets, bills of lading and passes for the transportation of himself and servant and property to their destination.
    While he was thus engaged at the office, the train which was to take the car with his property and his servant in charge of the property-, came to the station and stopped. The conductor was informed that the car was to be placed in the train. The train was then backed east over the East County road, and the caboose and three box cars were left about 200 feet east of that road. The forward part of the train then returned to or near the west county road, and the men in charge of it proceeded to pole or push out the car containing Depew’s property eastwardly along the side track to the main track in front of the cars standing east of the east county road.
    After Depew had finished his business at the office, he walked eastward intending to go to the caboose, and go on the train to the first or second station westward.
    In going from the office to the caboose he walked between the side track and the main track to a point about thirty yards west of the east county road, and there stepped on the main track and walked on it eastward until he came near to the east county road. At this point he was overtaken by the locomotive and cars backing eastward. The rear car struck him and threw him forward on the track and some part of the car passed over and injured his foot and leg.
    At the time he stepped on the main track he looked around and saw the locomotive with the cars attached to it standing on the main track about thirty yards west of where he stepped on the main track.
    After thus looking and seeing the locomotive and cars standing still, he continued to walk eastward on the main track about thirty yards without turning around or looking further to see whether the cars were moving or not. While he was thus walking on the track he did not hear the whistle or the bell of the locomotive nor any noise of the moving cars. During this time he was earnestly engaged in conversation with one Tobias Lent, who was walking along the track eastward, on the south side of it.
    Mr. Depew could have crossed the track at the place where he stepped on it and could have walked along by the side of it eastward; but the ground there was not as smooth and the walking not as good as it was on -the track where he was walking at the time he was hurt.
    The record contains all the testimony given or heard upon the trial.
    The defendant requested the court to instruct the jury as follows: “If the jury shall find from the testimony that Depew, at the time he was injured, was walking upon the main track of the railroad, and was not using the east county road as a crossing to reach the caboose, the fact that no signal was given by the engineer in charge of the engine, of the moving of the engine and cars attached toward that crossing, would not be such neglect as would render the company liable for the injury, unless the conductor or engineer in charge of the train or engine knew at the time the train was being backed that Depew was on the track, and they then failed to give him warning, by signal or otherwise, of the approach of the train in the same direction on the same track.” Which instruction the court refused to give, and thereupon, besides many other instructions and charges given to the jury, the court gave the following:
    
      5. “But if you find from the evidence that there was a uniform custom or rule of the defendant, its agents or employés to give a signal by ringing of the bell or blowing of whistle when its train is being moved under the circumstances it was being moved at the time of the injury to plaintiff, that the same was notorious and well known to the plaintiff, and that the employés of the defendant omitted to-give such signals and that the plaintiff by reason of such omission was injured without any fault or negligence on his part contributing to the injury the defendant would be liable.” To which the defendant excepted.
    
      A. W. Train, for plaintiff in error.
    The negligence of defendant contributed to the injury. Barker v. Savage, 45 N. Y., 191; Gorton v. Railroad Go., Id., 660; McGrath v. Railroad Qo., 59 N. Y., 468; Railroad Go. v. Snyder, 24 Ohio St., 670; Railroad Go. v. Crawford, 24 Ohio St., 631; Railroad Go. v. JElliott, 29 Ohio St., 341; Wharton on Neg., § 300.
    
      Taylor §• Anderson and B. W. Wood, for defendant in error,
    claimed that there was no negligence on the part of defendant in error, and cited Wilson v. Northern Pao. R. R. Go., 26 Minn., 278; Penna. R. R. Go. v. Roy, 302 U. 8., 457; Cooly on Torts, 552; Railroad Go. v. Mowry, 36 Ohio St., 418; Bonnell v. Bel. Lack. Western R. R. Go., 39 N. J. Law, 189; Knight v. P. §■ S. R. R. Go., 56 Maine, 234, 252; M. Blroy v. N. $ L. R. R. Go., 4 Cush., 400; March v. Qoncord R. R. Go., 29 N. IL, 9; - Penn. R. R. Qo. v. Nenderson, 51 Pa. St., 315; Qohen v. Nance, 1 McCord, S. C., 439; Longmore v. G. W. Ry. Go., 115 E. C. L., 183; Nicholson v. L. f Y. Ry. Go., 3 H. & C., 534; Martin v. G. N. Ry. Go., 30 E. O. L. & Eq., 473; 41 Mich., 667.
   McCauley, J.

The serious question, in this case, on the trial in the common pleas, was whether or not, the facts of the case made the defendant liable. The petition alleges a failure to ring the bell or sound the whistle of the locomotive at a road crossing, in consequence of which the injury occurred. The proof shows that Depew, the plaintiff, had business with the agent of the Company at Gibson’s station, and after he had finished his business at the office of the Company, he went eastward intending to go to the rear car of that part of the train east of the east county road.

The proof also shows, and the testimony of the plaintiff himself is, that while he was going to the rear car of the train, he saw the locomotive with two cars attached standing on the main ti'ack, that he Avent eastward to a point about thirty yards west of the east county road, Avalking between the main track and the side track, and' there stepped on the main track and Avalked upon it, knoAving the engine and cars were standing a short distance west of Avhere he got on the.track, and knowing also that they Avere likely to move toward him at any moment.

When he stepped on the track he looked at the train and it was standing still. He then Avalked along the track eastward, and did not again look around to see Avhether it was standing or moving.

He claims that Avhile he AVas thus walking on the track he omitted to look around, because he expected if the train moved, he would hear a signal from the locomotive, and • hearing none he kept on his way until the backing cars struck him.

. It is very clear from the facts testified to by the plaintiff, that the liability of the defendant does not depend upon the failure of its employés operating the train, to give notice of its approach to a road crossing. The plaintiff Avas not upon a public road and the injury did not occur upon a road.

This is the ground of liability alleged in the petition, and AA'hile the proof does not tend to sustain it, yet where the testimony is all before the court, if upon any other ground the liability can be sustained upon the proof, the judgment should not be reversed.

The liability of the defendant, upon the facts in evidence upon the trial depends, firstt upon the question whether the plaintiff Avas guilty of negligence in Avalking on the railroad track at the place and time and under the circumstances under Avhich he did it; and secondly whether he might walk on the track and rely upon a signal for the moving of the train to notify him to leave the track.

These questions involve nothing more nor less than the doctrine of negligence on the part of the defendant, and contributory negligence on the part of the plaintiff. Adoctrine so well settled that no authorities need be cited to direct in its application to this ease.

•The plaintiff knowing that the tiain would soon move backward, went upon the track at a station a few yards in the rear of.the train, and thence walked from the train, and did not take the care to look around, or in any way keep a lookout for its movements until the backing cars struck him, and this, when there was nothing to hinder him from turning around, and nothing to prevent him from plainly seeing the train if he had looked for it.

It cannot be otherwise than that this is such negligence on the part of the plaintiff as should prevent his recovery, unless he had shown that the men operating the train wilfully and purposely ran the cars against him. He voluntarily and needlessly put himself in a highly dangerous place, a place, however, wheré he might go without incurring any liability as a wrong-doer; but where his own safety-required his attention to his surroundings without one moment’s interruption. If he risked himself in such a place, he must take whatever injury came from his own want of attention to his danger.

Shall the plaintiff walk upon the track and depend upon a signal for .the moving of the train, to notify him of danger? In doing this he took all risks upon himself. The men operating the train were under no obligation to signal the moving forward or backward. The)1- did that, if at all, for their own convenience, not to notify persons to get off the track. And certainly no such signal should be required when no one was «seen upon the track.

The plaintiff does not claim that as matter of law he was entitled to this notice. He was not crossing the track at a highway; but he claims that, knowing the custom or rule of the defendant to give a signal for moving in either direction, he might safely rely, and did rely, on the fact that the train would not move without giving a signal.

The plaintiff was in a. place of too great danger to hazard his safety upon a signal which might or might not be given.

The uncertainty that the signal would be given, or that he would hear it in time to avoid danger was too great to authorize him to omit all further care or watchfulness, and depend upon the signal alone. The plaintiff, Depew, urns therefore clearly so careless and negligent in keeping watch of this train that his injury came from his own fault. It does not appear that the defendant was in any fault. Its employés backed the train, at a speed and in a way not unusual, and struck the plaintiff, not seeing him or knowing he was on the track.

The instruction to the jurjr requested to be given by the defendant in the common pleas, and which was refused by the court, states the exact rule of liability in the case.

This request proceeds upon the ground that the plaintiff, while walking on the railroad near where ears were standing and liable to move at any moment, was not entitled to notice or signals of the moving of the cars. And the railroad would not be liable for his injury unless the men in charge of the train knew he was on the track and failed to give him warning of the movement. This instruction should have been given, and its refusal we think was error.

The court thereupon did instruct the jury that if there was a custom or rule of the defendant to give a signal by bell or whistle, when a train is about, to be moved, and that the rule was notorious and known .to the plaintiff and the employés of the railroad omitted to give the signal, and that by reason of .such omission the plaintiff was injured, without any fault or negligence on his part contributing to the injury, the defendant would be liable.

This instruction nmke.s the liability of the defendant to turn upon the omission to give the signals. It assumes that’ when the plaintiff went upon the track, he might safely remain there until he got a signal to leave it, or that he might remain there relying that the signal would be given, and he would hear it in time to avoid danger. And it implies an obligation to give the signal.

For reasons already stated we think there is error in this instruction. It is also misleading. It implies that if the signals were omitted the defendant would be liable, if the plaintiff were guilty of nothing more than walking on the track. The charge states that if the plaintiff was injured without any fault or negligence on his part the defendant would be liable; but omits to state what would be fault or negligence on his part.

The jury with this instruction thus incomplete would readily conclude that as the walking on the track without a constant lookout for moving cars was not designated as negligence, there was none on the part of the plaintiff; and the only question of fact left to be determined from the evidence was the omission to give the signals. And hence the liability of the defendant depended wholly upon that fact.

The question of negligence is generally a mixed question of law and fact, and a charge to a jury that a plaintiff must be without fault or negligence, without stating what facts in the case would be fault or negligence, leaving the jury to find what the facts are, is a statement of an abstract rule of law, and leaves the jury without any direction as to the legal effect of the principal facts of the case.

On the trial in the common pleas after the plaintiff had rested his case, the defendant moved the court to direct the jury to return a verdict for the defendant upon the case made by the plaintiff. This motion was overruled and refused, and this refusal is assigned for error.

The view we take of the case does not make it necessary to determine whether there was error or not in this action of the court. We are of opinion that the proof of negligence on the part of the plaintiff was so clear, and the proof of negligence on the part of the defendant was so slight, as to require the court to set aside a verdict fpr the plaintiff on such evidence. It follows from this that the assignment of error that the verdict is not .sustained by sufficient evidence is fully sustained.

Judgment reversed.  