
    La Dow, Admr., v. The Baltimore & Ohio Rd. Co.
    (Decided June 1, 1931.)
    
      Messrs. Taft, Stettinius & Hollister, for plaintiff in error.
    
      Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   Hamilton, J.

Plaintiff in error was plaintiff below.

The action was for the wrongful death of Welcome La Dow, claimed to have been caused by the negligent act of the Baltimore & Ohio Railroad Company, and was brought for the benefit of the heirs and next of kin of said Welcome La Dow.

The petition alleges that La Dow was employed by the defendant as a switch tender, working in the yards of the Central Union Depot Company of the city of Cincinnati, and that while La Dow was in the employ of the defendant, and was engaged in interstate commerce, he was struck by a locomotive driven carelessly and negligently by the defendant, backward, toward the Central Union Depot.

The allegations of negligence were the backing of the locomotive toward the depot at an excessive rate of speed; failure of defendant’s employees to maintain a lookout, in which event they would have seen La Dow and the locomotive could have been stopped; failure to give a proper warning; carelessly proceeding without having received a clearance signal from La Dow; and the maintenance of false works which served to obscure the vision of the defendant’s employees.

The answer of the defendant railroad company denied the allegations generally and specifically.

The defendant railroad company is a foreign corporation, organized and existing under the laws of the state of Maryland, is a resident of the state of Maryland, and is a common carrier engaged in interstate commerce.

The record discloses that a motion was made to remove the case to the federal court by reason of the diversity of citizenship, La Dow being a resident of Cincinnati, Ohio. On the showing the case was removed to the federal court, where, on motion, the case was sent back to the Hamilton county common pleas court for trial, presumably on the theory that the plaintiff’s decedent was an employee of the defendant railroad company.

The case went to trial apparently on the theory that La Dow was an employee of the Baltimore & Ohio Railroad Company, and that therefore the ease was one falling under the Federal Employers’ Liability Act (Title 45, Sections 51 to 59, U. S. Code).

The plaintiff submitted his evidence on the question of the employment of the decedent and the negligent acts of the railroad company, its agents and employees.

At the close of all the evidence, counsel for the railroad company moved for an instructed verdict, on the ground that the evidence disclosed that the decedent was at no time an employee of the defendant railroad company, but was an employee of the Central Union Depot Company, and on the further ground that no proof of negligence on the part of the railroad company was shown and the evidence raised the presumption of negligence on the part of the decedent.

The record discloses that the trial court sustained the motion for a directed verdict on the sole ground that the decedent was not at the time of the accident an employee of the Baltimore & Ohio Railroad Company.

An instructed verdict was returned by the jury and judgment was entered on the verdict. From that judgment the plaintiff in error prosecutes error to this court.

It is conceded — and is shown by the record to be the case — that La Dow was employed by the Central Union Depot Company, which company owned and controlled the trackage and the operation of trains in the yards of the Central Union Depot; that the movement of all trains in the yards was under the control of and operated by the Central Union Depot Company and its servants and employees ; that the service of such employees was in the directing of the trains of the different railroads coming into and departing from the Central Union Depot Company’s station, and all necessary switching in connection therewith in the depot yards.

It is argued that La Dow at the time he was injured was engaged in directing the operation of the Baltimore & Ohio Railroad Company’s switch engine and was therefore to that extent a servant of the Baltimore & Ohio Railroad, notwithstanding he was paid for such service by the Central Union Depot Company.

Some federal cases are cited tending to support this proposition. However, the facts in the cases cited are clearly distinguishable from the facts presented here.

The question then is: Did the directing by the decedent of the Baltimore & Ohio engines, while an employee of the Central Union Depot Company, make him an employee of the Baltimore and Ohio Company?

The question under a similar state of facts is presented in the case of Payne, Dir. Genl., v. Lind, Admx., 106 Ohio St., 14, 138 N. E., 366. In that case the administratrix of the estate of Lind brought an action against the Baltimore & Ohio Railroad Company and the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to recover for wrongful death. Both railroads were operated by Payne, Director General. The Baltimore & Ohio Company used the depot, and, by agreement between the two companies, it was the duty of plaintiff’s decedent to prepare and make ready the trains of the Baltimore & Ohio Railroad Company for departure. Lind was employed by Payne, Director General, operating the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company. The force of the decision in the Lind case is that, notwithstanding Lind, by agreement with the Baltimore & Ohio Company, had the duty to prepare the Baltimore & Ohio trains for departure, he being the employee of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and notwithstanding both roads were operated by Payne, Director General, Lind was not an employee of the Baltimore & Ohio Railroad Company, and that the Federal Employers’ Liability Act (Title 45, Sections 51 to 59, U. S. Code), permitting recovery under the proportionate-negligence rule, had no application.

Counsel for plaintiff in error seek to distinguish this case, but in our opinion the Lind case presents a stronger case for the application of the Federal Employers’ Liability Act than the case under consideration.

Upon the authority of the case of Payne, Dir. Gen., v. Lind, Admx., supra, we hold that the plaintiff’s decedent at the time of his injury and death was not an employee of the Baltimore & Ohio Railroad Company, and therefore the Federal Employers’ Liability Act has no application, and the trial court was correct in so holding.

However, it is contended by the plaintiff in error’s administrator that he is entitled to go to the jury on the question of common-law negligence, under the Ohio rule; that there is sufficient in the petition to justify the going to the jury on this issue.

The petition states a cause of action under-Section 10770, G-eneral Code. The petition also contains allegations of employment, which, if proved, would bring the case within the Federal Employers’ Liability Act. We have found that the plaintiff has failed, in the proof, to bring the case within the federal act. However, the evidence is fully presented on the question of common-law negligence. If there was a scintilla of evidence tending to prove negligence against the defendant railroad company, and the plaintiff’s evidence did not raise the presumption of contributory negligence as a matter of law, we are of opinion that the case should have been submitted to the jury on the issue of common-law negligence. This view is supported in principle by the case of Gartner v. Corwine, 57 Ohio St., 246, 48 N. E., 945. In the course of the opinion in that case the Supreme Court said, at page 254 of 57 Ohio State, 48 N. E., 945: “The code permits a plaintiff to state the facts which constitute his cause of action; and when, upon any of the facts so stated, he is entitled to recover, he cannot be denied that right because he has alleged other facts that he is unable to prove.”

This brings us to the question of whether or not there is a scintilla of evidence to show negligence on the part of the defendant Baltimore & Ohio Bail-road Company, and if so, does the plaintiff’s own evidence raise a presumption of negligence on the part of the decedent, contributing to his own injury and death?.

The pertinent and controlling facts as shown by the plaintiff’s evidence are substantially these: That the Baltimore & Ohio train in question, No. 55, came into the station under the direction of the employees and servants of the Central Union Depot Company; that the engine was detached, and went some three or four hundred feet back into the yards to take water. In the meantime a switch engine was run in on track 2, adjacent to track 3, which track 2 had a switch over from track 3 at a point in the yards; that a switch engine had gone in on track 2 toward the depot to remove a baggage car which was to be attached to the Baltimore & Ohio train No. 55. La Dow in the course of his employment, and as one of his duties, went to track 3 and there signalled the switch engine on track No. 2 to stop, for the evident purpose of permitting the engine of No. 55 to back up for coupling onto the Baltimore & Ohio train No. 55. He gave the stop signal for the switch engine on track 2, and while standing on track 3 signalled the Baltimore & Ohio engine on track 3 to back up. The engine on track 2 stopped at his signal. For some reason unexplained and unexplainable La Dow stood on or adjacent to track 3 while the engine for train No. 55 was bearing down upon him, which he had signalled to back up. The fireman and the engineer on track 2 saw the engine backing up on track 3, and when the engine on track 3 was within 25 or 30 feet of La Dow shouted to him. La Dow was standing with his back or side toward the approaching engine on track 3, remained there, and was struck by the engine on track 3, backing up.

It may be claimed that the engineer or fireman on the engine on track 3, hacking up, should have seen La Dow and given him some special warning. They testified, and were witnesses for the plaintiff, that at La Dow’s signal they gave the three blasts of the whistle in response to the signal; that they were coming in at about six to eight miles an hour and could see La Dow. All the witnesses who saw the accident saw La Dow on or near track 3 and saw the engine which struck him bearing down upon him. Certainly if he had looked he could have seen the engine approaching, even if he had not signalled it to back up, and could easily have stepped ^side, and his failure to do so was gross negligence. If there was a scintilla of evidence of negligence by reason of. the engineer or fireman not giving a special signal, or not stopping the engine before striking La Dow, the plaintiff’s own evidence clearly raised a presumption of contributory negligence, which plaintiff failed to remove, and which defeats recovery.

For the reasons stated an instructed verdict at the close of all the evidence was proper, and the judgment of the court of common pleas of Hamilton county will be affirmed.

Judgment affirmed.

Eoss, P. J., and Cushing, J., concur.  