
    The Lake Shore & Michigan Southern Railway Co. v. Peter Lavalley.
    1. In an action brought by an employee of a railroad company against it, to recover for injury sustained while in the discharge of his duty, the negligence charged was the moving of a car under which the plaintiff was working, without notice or warning. The proof showed that the negligence in not giving notice or warning of the moving of the car was attributable to the foreman under whose control the plaintiff was working and not to those engaged in moving the car.
    
      Held, that the case was not one of a failure of proof under section 133 of the Code, but, at most, of variance under sections 131 and 133.
    3. It is the duty of a railroad company to make such regulations or provision for the safety of its employees as will afford them reasonable protection against the dangers incident to the performance .of their respective duties.
    3. A foreman was put in charge of a set of hands, whose business it was to repair freight cars while standing on the track, in the yard of the company in which trains were accustomed to be made up; it was also the duty of the foreman to participate with the hands in doing the work. While the foreman and a hand were engaged in repairing a caT, and the latter was at work under the car by the order of the foreman, he was injured by the striking of the car on which he was working by another car moving on the same track. Held:
    
    1. That tbe hand was the subordinate of the foreman, in respect to the work in-which he was engaged at the time he was injured.
    3. That it was the duty of the foreman, in putting the hand to work under the car, to use reasonable care to protect him, while thus engaged, from the danger arising from the switching of cars and the making up of trains on the same track ; and for an injury resulting from the want of such care, the company is liable.
    Error to the District Court of Lucas. County.
    The cause of action against the defendant below, as alleged by tbe plaintiff below in his petition, is in substance this :—
    That the plaintiff, an employee of the defendant, in the performalice of bis duty and in pursuance of the order of liis ■superiors in such service, was under a car making certain repairs ; that it was the duty of defendant, by its agents, to prevent a starting or moving of said car and otherwise to protect plaintiff from danger while so working under said car; • and that defendant negligently and wrongfully, by its agents and servants, without any notice or warning to plaintiff, put •and continued said car in motion, whereby plaintiff received the injuries complained of.
    The answer in substance denies each of these allegations.
    The facts of the case, as shown by the testimony set out in the bill of exceptions, are, in substance, as follows:
    Lavalley bad 'been employed for nearly three years as a repairer, on. the track, of crippled freight cars, at the stock yards of the Lake Shore & Michigan Southern Railway Company, on the east side of the Maumee river, and about three weeks before be was hurt was transferred to the freight yards ■at the Air Line Junction, on the west side of the river, to do the same kind of work there. This work consisted of an ex-.animation of all freight cars on their arrival, and to repair those he found needing such repairs as could he made on the tracks in the yard. The repair gang consisted of Fox, the foreman, Lavalley and Clark, repairers, and two other men ■called oilers. It was customary for these men, including Fox, to go out separately and examine the cars in the trains on their .■arrival. If they found a car needing such repairs as they could make alone, they repaired it; but if they could not make the repairs alone any two of them would go and do the work together. Engines and train men were at work about these yards at all times, engaged in switching cars and making up trains; and in the prosecution of their work it was also customary for these repair men, when alone, and they liad to be under a car, to look out for themselves that the car would not be moved; but when two were together it was exjiected that the one not under the car would watch for the other, and this would be the case whether Fox and one of his men, or two of ■■tlic men, worked together. At this time the only means the men engaged in switching about the yards had of knowing that a car repairer was at work in any particular locality was by these men telling them when and where they were going to repair a car.
    Afterwards signal flags were used to designate cars that were ■being repaired.
    On the day Lavalley was injured Fox directed Lavalley to pick out a bolt and go with him 'to repair a car he had found there needing a bolt which would require two men to put in. Fox also picked out another bolt and wrent with Lavalley to a crippled box freight car. The two worked together in taking •out a broken bolt and replacing a new bolt through the floor ■and in the draw part of the car. While Fox was under the •car screwing on the nut he directed Lavalley to take the other bolt and go to another box car, which lie pointed out near by, and commence the work of driving out a similar broken bolt and putting in the new one. Lavalley did so, and went under the car for the purpose of driving the old bolt out through the sill and floor of the car. Fox then came over and jumped into this car to assist in completing the work, but not finding the new bolt to be put back asked Lavalley to hand it to him. Lavalley came out from under the car, picked up the new bolt, took oft' the nut, handed the bolt to Fox, and then returned to his place upder the car to screw on the nut after Fox had ■driven the new bolt down. While Fox was driving the bolt •down and Lavalley was putting on the nut, a pony engine, engaged in making up a train, set some cars in motion on this track in such a manner as to cause this car to be moved about half its length, and thereby inflict upon Lavalley the injury ■complained of.
    Neither Fox nor any of his men had any control over the men engaged in making up trains ; nor was there any negligence chargeable to the latter in respect to causing the injury in question.
    The trial resulted in a verdict and judgment for the plaintiff below.
    On error, the judgment was affirmed by the district court; ■and the present proceeding in error is prosecuted by the company to obtain a reversal of the judgment.
    
      
      JR. da JE. T. Waite and James JMJason, for plaintiff in error :
    We insist that the allegation of the claim, to which the proof was directed, being unproven, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within sections 5294 and 5295 of the revised statutes, but a failure of proof. Section 5296 of revised statutes (§ 133, also §§ 131 and 132 of code; S. & C. 989). Dean v. Yates, 22 Ohio St. 388, par. 2, page 396 ; also, Hill v. Supervisor, &c., 10 Ohio St. 621, and Thatcher v. Heisey, 21 Ohio St. 668.
    It is a rule of law now well established in Ohio, that where one servant of a rhilway company is injured in consequence of the neglect of another servant, between whom, for the time being, no relation of subordinate and superior’, in connection ■with the particular act of negligence complained of, exists, the injured party has no right of action against the company. Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 201; Mad River & L. E. R. R. Co. v. Barber, 5 Ohio St. 541; Whaalan, v. Mad River & L. E. R. R. Co., 8 Ohio St. 249 ; Manville v. C. & T. R. R. Co., 11 Ohio St. 417; Pittsburg, F. W. & G. Ry. Co. v. Devinney, 17 Ohio St. 197.
    And the question in this issue is whether there existed, at the time this injury was received, such a relation of subordinate and superior between the laborer, Lavalley, and the foreman, Fox, as would render the company liable to Lavalley for the consequences of the asserted negligence of Fox in not keeping a more strict lookout and warning Lavalley in time of the approaching danger.
    In this case the testimony shows that Fox was the superior of Lavalley in all matters connected with the order and manner in which the work upon the car should be conducted, but in the matter of keeping watch and lookout for danger that no relation of superior and subordinate existed. Lavalley did not depend upon Fox to look out because he was the foreman, but simply because he was his fbllow-laborer in the prosecution of the work about which they were both engaged. It was not the duty of Fox to keep this lookout because he was the foreman, bnt simply because of that duty wbicb one fellow-laborer owes to another. It is unquestioned but that it would have been just as much the duty of Lavalley to have kept watch while Fox was under the car as for Fox to have done so while Lavalley was there. This was a reciprocal duty the one owed to the other as co-laborers, and not because of any superior relation of the one over the other.
    
      Lee de Brown, for defendant in error :
    The negligence of Fox produced the injury. Shearman & Redfield on Negligence, § 10; 8 Bosw. 345; 2 E. D. Smith, 413.
    The superior cannot, at one and the same time, be the superior and the common fellow-servant. Railroad v. Stevens, 20 Ohio, 415; Railroad v. Devinney, 17 Ohio St. 210; Berea Stone Co. v. Kraft, 31 Ohio St. 293; Railway Co. v. Lewis, 33 Ohio St. 200; 53 N. Y. 549.
   White, J.

The first ground of error relied on is that there was a failure of proof on the part of the plaintiff, under section 133 of the code, and not a variance between the allegations in the petition and the proof, as defined by sections -131 and 132. We regard the case as raising a question of variance merely, within the meaning of the last two sections.

The petition charged that the plaintiff, by the order of his superior, was under a car making repairs; that it was the duty of the defendant, by its agents, to prevent the moving of the car, and otherwise to protect the plaintiff from danger while so working under said car; and that the defendant negligently and wrongfully, by its servants and agents, without any notice to the plaintiff, j>ut the car in motion, whereby the plaintiff was injured.

The negligence charged consisted in the failure to notify the plaintiff of the approaching danger, and in the moving of the car without such notice. Both are alleged to have been operative in causing the injury. It is not definitely stated on what servant the duty rested of giving the plaintiff notice; but, if the purposes of the defense required this to be more specifically ¡stated, application should have been made to the court to com- ] el the plaintiff to make the petition definite and certain in this respect. As the case is presented, we think it comes within the principle laid down on the subject of variance, in Huffman, v. Gordon, 15 Ohio St. 212, 216.

The next ground of error is that the relation of superior and subordinate existing between the foreman, Fox, and the plaintiff below, Lavalley, was not such as would make the company liable for the negligence of Fox in causing the injury in question.

The claim on behalf of the company is that Fox was the superior of Lavalley in all matters connected with the order and manner in which the work upon the cars should be conducted, but in the matter of keeping watch and lookout for danger that no relation of superior and subordinate existed; that in this respect they were merely fellow-servants engaged in a common service, neither having any control or authority over the other.

"We do not concur in this view. It was the duty of the company to make such provision or regulations for the safety of its employees as would afford them reasonable projection from the dangers incident to the performance of their respective duties. ■

In the present case Lavalley, the plaintiff below, was one of a set of hands whose business it was to repair freight cars while standing on the track. The place in which the repairing was required to be done was in the freight yard of the company, in which the freight trains were accustomed to be made up, and where there was a constant switching of cars from one track to another. The services, therefore, required of these hands were peculiarly dangerous; and it was the duty of the company to make reasonable regulations or provision to protect them from the dangers to which they were exposed from moving trains and cars, while engaged in the discharge of their duties.

The hands, under the regulations of the company, were put in the charge of Fox, who, in directing their operations, was ¿lie representative of the company. No other provision or regulation seems to have been made for their government or protection. By setting Lavalley to work under the car, where, by the exercise of reasonable care, he could not discover an approaching train or car in time to save himself from injury, it was the duty of Fox to see that reasonable precautions were taken to guard him against such danger; and for the injury resulting from such neglect the company is liable. Fie might have watched, himself, or, if his services were required in the •car, he might have required one of the other hands to watch; but he did neither, nor did he adopt any other precautions. -

It is said by counsel that if the company is liable to Lavalley, it would likewise have beén liable to Fox, if he had been injured under like circumstances. Such' conclusion is not warranted. Fox had authority to direct what precautions should be taken to guard against danger. He could have required one of the hands to watch while he was engaged in the work. La-valley had no such authority. If Fox had chosen to expose himself to the danger, and had neglected to exercise the authority with which he was invested to protect himself from injury, the fault would have been his own.

Judgment affirmed.  