
    The Pennsylvania Company v. McCann.
    
      Prima facie evidence of fact — Action in this state — Cause of action without or within limits of this state — Protection of railway employees — Act of April®, 1890 ( 87 Ohio Laws, 149) — Authority of General Assembly — Constitutional law.
    
    1. The general assembly of this state has authority to prescribe the circumstances that shall constitute prima facie evidence of a fact in issue in an action on trial in the courts of this state, whether the cause of action to which it relates arose within or without the territorial limits of the state.
    2. -The provision of the second section of the act of April 2, 1890 (87 Ohio laws, 149), which provides that when certain ‘ defects shall be made to appear in the trial of any action in the courts of this state, brought by such employe or his legal representatives against any railroad corporation for damages on account of such injuries so received the same shall be prima facie evidence of negligence on the part of such corporation,” applies to all railroad companies any part of whose line of railway extends into this state, whether the injury complained of was received within or without the state.
    (Decided January 21, 1896.)
    Error to the Circuit Court of Mahoning county.
    On the 7th day of May, 1890, the defendant in error, who was a brakeman in the service of the plaintiff in error, in attempting, in the state of Pennsylvania, to board one of its moving cars, put his foot in a stirrup that was suspended from the sill of the ear, and used as a step in' mounting the car; the stirrup, or step, yielded to the pressure of his foot, causing him to be thrown under the car, whereby a wheel of the locomotive, which was backing, ran over one of bis legs, inflicting the injury of which he complained in his petition. After the evidence on behalf of the defendant in error had been introduced, the plaintiff in error moved the court of common pleas to take the case from the jury and to render'a judgment in its favor, which was . done. Thereupon the defendant in error carried the cause to the circuit court to reverse the judgment of the court of common pleas.
    The circuit court reversed the judgment of the court of common pleas on the sole ground that the act of April 2, 1890 (87 Ohio Laws, 149), was applicable, by force of which, the fact that the stirrup was defective, made a primeo facie case of negligence against the railroad company. The railroad company thereupon, brought the cause to this court to reverse the judgment of the circuit court and reinstate that of the court of common pleas.
    
      A. W. Jones and Ceorey <& Boyle, for plaintiff in error.
    Many questions may be 'said to arise in this case. The first in line that occurs to us is what is known as .the scintilla of evidence. Ellis & Morton v. Life Ins. Co., 4 Ohio St., 644; Commissioners v. Clark, 94 U. S., 284; Howard Express Co. v. Wile, 64 Pa. St., 205; School F. Co. v. Warsaw, 123 Pa. St., 501; Ryder v. Wombwell, Law Rep., 4th Exch., 39.
    The servant in order to recover for defects in appliances of the business, is calléd upon to establish three propositions: 1. That the appliance was defective; 2. That the master had notice thereof, or knowledge, or ought to have had. 3. That the servant did not know of the defect, and had not equal means of knowing with its master. Coal & 
      
      Car Co. v. Norman, 49 Ohio St., 607; Philadelphia & Reading R. R. Co. v. Hughes, 119 Pa. St., 301; Mensch v. R. R. Co., 150 Pa. St., 605; Mixter v. Imperial Coal Co., 152 Pa., 396; Sack v. Dolese, 137 Ill., 129.
    It never has been held by any court higher than a jury that an employer was the guarantor of the safety of his machinery and appliances. His whole duty ends when he has used ordinary care for that purpose. Railroad Co. v. Fitzpatrick, 42 Ohio St., 324; Railroad Co. v. Crawford, 24 Ohio St., 636; Rufner v. Railroad Co., 34 Ohio St., 96.
    The burden of proof is upon the party claiming that the injury was done, to show that it was occasioned by negligence, carelessness or wantonness. Titus v. Lewis, 33 Ohio St., 304; Potter v. Railroad Co., 136 N. Y., 77; Webb case, 12 Ohio St., 475.
    There can be no doubt of the power or right of the court of common pleas, in a proper - ease, to take it from a jury, and render judgment. Rothgeb case, 32 Ohio St., 66; Winchell v. Crider, 29 Ohio St., 480; Railroad Co. v. Henley, 48 Ohio St., 608. Duties and rig’hts arising upon admitted facts, are and must be pure and unadulterated questions of law. Railway Co. v. Murphy, 50 Ohio St., 135.
    Another question is, then has this statute any application to an injury arising outside of the state of Ohio? We insist that by a true construction of this statute the legislature did not intend to effect causes of action arising in any other state, and that it can make no difference whatever in the determination of this case. But it is said that this is a remedial statute, and, applying as it does to the remedy only, that it must affect the cause, and that cause must be tried as though it had arisen within the state. Steamboat Champion v. Jantsen, 16 Ohio St., 91; Goodsill v. Brig St. Louis, 16 O. P. 178; Steamboat Co. v. Stunt, 10 Ohio St., 582; Thompson v. Steamboat Julius D. Morton, 2 Ohio St., 31; Steamboat Messenger v. Pressler, 13 Ohio St., 255; Schooner Aurora Borealis v. Dobbie, 17 Ohio, 125.
    Another rule of construction of statutes is “The mischief to be remedied must be considered. ” 22 Ohio St., 194; 19 Ohio St., 238.
    It will be said in this hearing that remedial statutes are to be liberally construed, and perhaps in some sense that is true; but it is only so for the purpose of giving the effect intended by the legislature, and not for the purpose of extending it beyond the intention of the legislature. Tracy v. Card, 2 Ohio St., 441; Pollock v. Spidel, 27 Ohio St., 94; Johnson v. Railroad Co., 163 Pa. St., 127.
    Very clearly then, a true construction of this section of the statute is that the legislature did not intend that it should apply to anything except to the state of Ohio. Arrowsmith v. Harmoning, 42 Ohio St., 261; Alexander v. Pennsylvania Co., 48 Ohio St., 636.
    Both parties are residents and citizens of the state of Pennsylvania; the contract of employment was made in that state; and all the transactions occurred in that state, including the injury.
    Had an action been brought in Pennsylvania, it would have been necessary to show that the defect had existed so long before the injury that the company knew or ought to have known of the defect, and that McCann did not know, and did not have equal means of knowing of the defect, and the citizens of that state had the right to assume that all this proof would be required to make a case.
    
      George F. Arrel; IK T. Gibson and R. B. Miorray, for defendant in error.
    The court of common pleas should have submitted the evidence in this case to the jury.
    
      First — Because it was sufficient to prove that the Pennsylvania company knew or ought to have known of the defect.
    
      Second — Because, in the courts of Ohio, when the defect and the injury have been proven, knowledge is presumed. Ohio Laws, vol. 87, page 149.
    A brakeman should not be prejudiced in his right of recovery against the company by the negligence of those servants of the company having-charge of the inspection and repaii of their cars, as they were superior to him in authority, and notice to them of the *defect was notice to the company. 55 Ill., 492; 35 N. E. Rep., 3; 24 S. W. Rep., 1; 116 N. Y., 398; 53 N. Y., 549; 95 N. Y., 546; 139 N. Y., 302; 116 U. S., 652; 100 N. Y., 462; 81 Me., 572 ; 55 Minn., 357; 148 Mass., 143; Davis v. Guarnieri, 45 Ohio St., 490; Griffin v. Railroad Co., 148 Mass., 143.
    If testimony tends to prove a prima facie case for the plaintiff, a nonsuit cannot be properly ordered. 4 Ohio St., 647 ; 38 Ohio St., 389; 50 Ohio St., 137; Am. & Eng. R. R. Cases, vol. 11, page 421; 17 Wall., 663; 60 Wis., 320.
    Should the evidence clause of section 2 of the act of April 2, 1890 (O. L., vol. 87, pp. 149-50), have been applied by the court of common pleas, on the trial in that court of the case at bar ? If this question should be answeréd in the affirmative, then the common pleas was in error, and its judgment was properly reversed by the circuit court. Knowlton v. Railway Co., 19 Ohio St., 260; Alexander v. Pa. Co., 48 Ohio St., 624; Kanaga v. Taylor, 7 Ohio St., 134; Murphy's Admr. v. Northern Transportation Co., 15 Ohio St., 553; Templeton v. Kraner, 24 Ohio St., 554; Downer v. Chesebrough, 36 Conn., 39; Hoadley v. Northern Transportation Co., 115 Mass., 304; Howard v. Moot, 64 N. Y., 262; Georgia Code, section 3033; 97 Ala., 275; Cooley’s Con. Lim., 5th ed. page 351; Wharton on Conflict of Laws, section 752; Story’s Conflict of Laws, section 629, et seq. •; Rorer on Interstate Laws, page 52; Wharton’s Evidence, section 1239a, 852; 6 Gray (Mass.), 1; 2 Duer, 278; 7 Md., 76; 23 Me., 553; 39 N. H., 304; 103 N. Y., 149; 148 U. S., 172; 125 Ill., 447 ; 44 Ohio St., 613; 26 Ohio St., 306.
    As we understand the printed argument of counsel for plaintiff ,in error, he admits the general rule as we claim it, but insists that this act of April 2, 1890, is limited, by its terms, to the trial of causes of action arising in this state. In so far as this statute is remedial in its provisions, it is entitled to and must receive a liberal construction in order that the remedy may be advanced. No argument is needed to prove that the second section of the act is purely remedial, and hence it should be liberally construed. It does not even change the burden of proof .upon the whole ease.
    This provision is simply declaratory of the common law of Ohio, of Pennsylvania, and of every other civilized community. There is absolutely nothing in this section, or in any other part of the act for that matter, to indicate a legislative intent to limit this section in its application to causes arising in this state. It prescribes a general rule of evidence which is manifestly just and applies alike to all causes in favor of and against the parties named. The Steamboat Ocean v. Marshall, 11 Ohio St., 379; Railroad Co. v. Erick, 51 Ohio St., 146.
   Bradbury, J.

The only question arising upon the record of sufficient importance to be worthy of extended consideration is whether the act of the General Assembly of this state, passed April 2,1890 (87 Ohio Laws, 149), is applicable to the case or not, the injury complained of having been sustained beyond :.the limits of this state. It was contended in arg-ument that the railroad upon which the plaintiff below was injured, lay wholly outside the state. The record, however, discloses that the railroad company, at the time and before the accident occurred, was operating a railroad running from Youngstown, in this state, to a point within the state of Pennsylvania, and in connection therewith, a branch, four or five miles long, on which the accident occurred, connecting the main line with certain coal mines from which it transported coal to the main line, and thence in different directions over the latter to market; and that in the discharge of his duties as servant of the railroad company, the defendant in error passed in and out of the state of Ohio, on the main line, as the exigencies of its business required.

The second section of the act in question (87 Ohio Laws, 149), prescribes the effect that shall be given to evidence which establishes a defect in the locomotive, ears, machinery or attachments of certain railroads, in actions for injuries to its employes, caused by such defects ; and declares that when such defects are made to appear the same shall b & prima facie evidence of negligence.

There can be no doubt respecting the general power of a state to prescribe the rules of evidence which shall be observed by its judicial tribunals. It is a matter concerning its internal policy over which its legislative department necessarily has authority, limited only by the constitutional guarrantees respecting due process of law, vested rights and the inviolability of contracts. Railroad Co. v. Erick, 51 Ohio St. Reports, 146.

In Templeton v. Kraner, 24 Ohio St., 554, this court held that “under the grant of legislative power in the constitution, the general assembly has complete control over the remedies which are to be afforded to parties in the courts of this state: and if the remedies provided do not interfere with vested rights, such effect must be given them as will carry out the intent of the law-making power.”

The rules of evidence pertain to the remedy, and usually are the same whether the cause of action in which they are applied arises within or without the state, whose tribunal is investigating the facts in contention between the parties before it. Nor is it material in this respect whether the parties are residents or non-residents of the state. The law of evidence in its ordinary operation is no more affected by one of these considerations than by the other. No extra territorial effect is given to a statute creating a rule of evidence by the fact that the rule is applied to the trial of a cause of action arising in another state, or to the trial of an action between parties who are non-residents. If the tribunals of a state obtain jurisdiction of the parties, and the cause, it will conduct the investigation of the facts in controversy between them according to its own rules of evidence, which is, simply, to follow its own laws within its own borders. This principle was followed by the supreme court of .Georgia in the case of Richmond & D. R. Co. v. Mitchell, 18 S. E. Reporter, 290, an action quite similar to the one we are now considering. The court saying : “Touching the evidence requisite to make a prima, facie case in behalf of the plaintiff below, the court gave in charge to the jury the rule of law applicable in this state between the parties where the action is against a railroad company for a personal injury sustained by one of its employes in consequence of the negligence of the company * * * . This was correct, although the injury sued for was sustained in the state of Alabama. The quantity or degree of evidence requisite to sustain an action or to change the burden of proof is determined by the law of the forum, and not by the law of the place where the cause of action arose. It belongs not to the law of rights, but to the law of remedy. ’ ’ The court of appeals of New York held in 1876 that “an act declaring any circumstance or any evidence, however slight, prima facie proof of a fact is valid.” Howard et al. v. Moot, 64 N. Y., 262. The cases that bear in some degree upon the question are so numerous that it is impracticable to cite all of them. Hays v. Armstrong, 7 Ohio, 248; Parker v. Sterling et al., 10 Ohio 357; Lewis v. McElvain, 16 Ohio, 347; Goshorn v. Purcell, 11 Ohio St., 641; Mason v. Haile, 12 Wheat., 370; Vanzant v. Waddel, 2 Yerger, 260; Von Hoffman v. Quincy, 4 Wall. U. S., 535; Long’s Appeal, 87 Pa. St., 114; Rathbone v. Bradford, 1 Ala., 312; Holland v. Dickerson, 41 Iowa, 367.

Doubtless, it would be competent for the general assembly to limit the application of a rule of evidence, created by it to causes of action arising within the state. If, therefore, the act under consideration does so limit the rule of evidence it establishes, the courts should observe this limitation. That the act has three sections: The first section provides “that it shall be unlawful for any railroad or railway corporation or company owning and operating, or operating, or that may hereafter own or operate a railroad in whole'or in part within this state, to adopt or promulgate any rule ” . * * * and then denounces with a penalty the violation of its provisions.

This section of the statute attempts to regulate the conduct of every railroad company or corporation that owns or operates any part of its line within this state. The general assembly has no authority over any others, and therefore could not compel their obedience to its commandments. It did, however, extend those commandments to the extreme limit of its jurisdiction — possibly beyond them — for it may be true, that although the line of a railroad may extend into this state, yet the general assembly may have no authority to inflict upon it penalties on account of acts or omissions occurring’ elsewhere. If this be so, the courts in construing thi's section, might hesitate to impute to the legislature an intent to usurp an authority it did not possess, and would not do so unless the language of the statute should be unambiguous in this respect. In terms, this section does not require the forbidden conduct to occur in this state in order to incur the penalty that it denounces therefor. The language of the section is broad enough to include acts and omissions performed or omitted in other states. This circumstance is important only in so far as it indicates a legislative purpose to extend the relief afforded by the act to the full extent of its authority.

The second section in forbidding the use of defective cars and locomotives by railroad companies, refers to them as such corporations, ’ ’ manifestly including every corporation owning or operating a railroad, any part of which extends into this state. Here again the prohibitive language employed is broad enough to include acts or conduct occurring in other states. If it does not reach them we are forced to conclude that this result is quite as much due to want of power as to absence of purpose.

In the subsequent clause, of the second section of the act wherein the general assembly sought to prescribe the rule of evidence, before referred to, applicable to the trial of actions in the courts of this state, brought by emploj^es of railroad companies on account of injuries sustained by reason.of defective cars, locomotives, machinery or attachments, it approached the question of procedure in our judicial tribunals, over which, as we have seen, the authority of the general assembly is practically supreme. This clause of the statute is purely remedial and should receive a liberal construction. The language employed by the act in this connection is consistent with a legislative purpose to extend the remedy to all actions of the character named in the act, against all railroad companies, and no sufficient reason has been assigned for limiting its operation to causes of action that arose within the state. Indeed, it would be somewhat anomalous to prescribe to the courts of the state rules of evidence depending upon the questions whether the cause of action arose within or with out the state; and an intent to create this distinction should not be imputed to the legislative power unless it is fairly inferable from, the language it has used.

That language is as follows: “And when the fact of such defect shall be made to appear in the trial of any action in the courts of this state brought by such employe or his legal representatives against any railroad corporation for damages on account of such injuries so received the same shall b e prima facie evidence of negligence on the part of such corporations. This language contains nothing indicating a purpose to confine the rule of evidence it creates, to causes of action that should arise in this state. On the contrary it expressly extends the rule to “any action in the courts of this state brought by such employe * * * against any railroad corporation. ’ ’ In fact, the language is comprehensive enough to apply the rule to a railroad company, in this class of actions, whether any part of its line extended into Ohio or not, *and if the courts of our state should acquire jurisdiction over the person of a railroad company whose line lay wholly without the state, no reason is perceived why the rule should not be applied.

Judgment affirmed.

Shauck, J.,

It is not doubted that some of the provisions of the act of April 2, 1890 (Ohio Law, vol. 87, p. 149), relate to the remedy in the cases contemplated, nor that the law of the forum determines all questions relating to the remedy. The only point of difference between the courts below and between counsel here, is whether the language of the act referred to does not exclude from its operation cases in which, the cause of action arose upon a railroad lying wholly within another state. If its terms do not permit its application in such cases the court of common pleas did not err in its judgment, otherwise the judgment of reversal in the circuit court, should be affirmed.

The scope of the act is expressly defined in the first section: “That it shall be unlawful for any railroad or railway corporation or company owning and operating, or operating, or that may hereafter own or operate a ra/Ll/road in whole or in part in this state to adopt, etc.” The remaining provisions of the first section relate to the contractual relations of such companies and their employes.

The second section of the act creates a prima facie presumption, not according to the common law, in favor of the injured person. By the terms of the section it affects only “ such corporation, ” that is, a railroad corporation operating a “railroad in whole or in part in this state. ’ ’ The duty enjoined by the section, and the presumption raised do not concern railroad corporations generally, but, by express restriction, only those described in the first section.

The general purpose of the act is to afford citizens of the state the protection of its provisions. Some of its provisions would be void if an attempt were made to apply them to roads lying in other states, and that would be true even if the general assembly had attempted to make them so applicable.

To hold that these remedial provisions are applicable to a case of this character is to ignore the general purpose of the act and to deny effect to the language by which its operation is expressly restricted.

Doubtless it would be the duty of the court to enforce the act with the limitations thus clearly indicated, even if the reasons for such limitation did not appear.- Those reasons, however, are apT parent. They are illustrated by the circumstances of this case. The general policy of the state has looked to the relief of suitors from the long and vexatious delays which all recognize. It would be quite remarkable if that policy had been interrupted by a statute creating a presumption in favor of plaintiffs not afforded elsewhere, and inviting the citizens of all the states to enter the courts of Ohio to secure its benefits, without any conditions except those which are imposed by the requirements of the code as to service of summons.

Whether attention be directed to the general purposes of the act, to the circumstances under which it was enacted or to its express provisions, it appeal's that the general assembly was concerned only for citizens of the state and that it lias taken care to avert consequences which this judgment of affirmance invites.

Burket, J., dissents and concurs in the foregoing.

Spear, J., did not sit in the case.  