
    The Oakwood Street Railway Co. v. Marker.
    
      Employe in action to recover for injuries — Need not allege knowledge of employer’s negligence, when.
    
    In an action by an employe to recover from his employer on account of injuries resulting from the latter’s negligence the plaintiif need not allege that he did not have knowledge of such negligence unless the allegation is required to repel an inference of knowledge which would naturally be raised by the facts alleged in the petition. (Coal & Car Co. v. Norman, 49 Ohio St., 598, distinguished.)
    (No. 13035
    Decided November 12, 1912.)
    Error to the Circuit Court of Montgomery county.
    Marker brought suit in the court of common pleas to recover from the company on account of personal injuries sustained by him while in its service as a motorman operating a car upon the streets of Dayton. In his petition he alleged that he was engaged in operating one of the company’s cars which became disabled by the breaking of an axle; that he returned with the car to the barn where it was taken in charge by one Howard Denise, the car repairer of the company, who was alleged to be the plaintiff’s superior and to whose orders he was subject; that Denise ordered the plaintiff to couple the injured car to another by which it was to be pushed farther into the barn; that the plaintiff proceeded to make such coupling in full view of Denise and could have done so with entire safety if Denise, who was in charge of the second car, had exercised care, but that while plaintiff was crouched between the cars executing the order, Denise without warning and with gross negligence started the car in his control and ran it upon the plaintiff inflicting the injuries of which he complained. The petition contained the further allegation that the company was guilty of negligence in employing Denise and in retaining him in its service, because he was addicted to the excessive use of intoxicating liquors and often was so under the influence of .liquors as to be incapable of properly performing his duties, whereby the safety of other employes was endangered; that by reason of his excessive use of liquors his efficiency was impaired and he was incapable of handling electrical machinery with ordinary care and prudence.
    The company answering denied that it was negligent and alleged that if Denise was negligent it was the negligence of a fellow-servant of Marker, and that Marker was guilty of contributory negligence. Replying the plaintiff denied the allegation of contributory negligence.
    On the trial the plaintiff offered evidence in support of his allegations and the company in opposition thereto. At the conclusion of the evidence counsel for the company requested the court to direct the jury to return a verdict for the defendant, which request the court denied. The court did,'however, instruct the jury that upon the evidence offered Denise was not the superior of Marker: Upon the allegations that the' company wás guilty of negligence in employing Denise and retaining him in its-service in view of his habitual intoxication the court gave the special instruction requested by the company and other instructions of which no complaint is made. The jury returned a verdict for the plaintiff and the company’s motion for a new trial being overruled, judgment was entered upon the verdict. A petition in error was filed in the circuit court by the company, and in' that court it was held that the common pleas court had erred in overruling the motion of the company for a new trial, because the original plaintiff had neither alleged nor offered evidence to show that he did not have knowledge of the habitual drunkenness and the drunkenness of Denise. The company thereupon moved the circuit court for a final judgment in its favor, which the court refused for the reason that it further found that the trial court had also erred in directing the jury that Denise was not the superior of Marker, there having been in the opinion of the circuit court some evidence offered by the original plaintiff to show that such relation existed. It thereupon reversed the judgment of the common pleas and remanded the case to that court for a new trial. Counsel for the company excepted to the refusal of the circuit court to render final judgment in its favor and counsel for Marker excepted to its judgment reversing that of the common pleas. By petition and cross-petition in error both of these exceptions are presented here.
    
      Messrs. McMahon & McMahon, for plaintiff in error.
    
      The record shows plainly that if Denise had the habits complained of, as stated by plaintiff’s witnesses, it was impossible for Marker to have been ignorant of the fact. In fact, during the two trials he made no effort to establish his ignorance. And as to the issue of superior servant, no additional proof is within the reach of either party.
    
      Mr. Roy G. Fitzgerald, for defendant in error.
    We realize that there are circumstances which call for negative averments and proof. In cases involving contributory negligence or assumed risk when the petition or evidence of the plaintiff raises an inference against him, he must remove it.
    It is claimed by opposite counsel, that this is one of those cases, but the circumstances do not sustain the claim.
    Marker, the injured man, did not work with the drunkard, nor at the same place. Marker was a motorman and his duty was to run cars on the streets, while Denise was the car repairer in the shop at the company’s office. There was no occasion for them to meet except upon extraordinary occasions when something might happen to the running gear of the car, as on the night of the accident. Clark County Cement Co. v. Wright, 16 Ind. App., 630.
    Generally speaking, the servant assumes only the risks usually incident to the employment. He does not assume the risk of the master’s negligence. P. C. C. & St. L. Ry. Co. v. Henderson, 37 Ohio St., 552; Spring Valley Coal Co. v. Buzis, 115 Ill. App., 196.
    
      The exception to this rule is founded on the principle that although the master has been negligent, yet if the servant knows and understands the increased danger, he assumes the additional risk. If the danger is “apparent,” “patent,” “obvious” or “open to view,” there is a presumption that the servant knew and understood it, and the burden is upon him to remove the inference; otherwise it is a matter of defense. Lehman v. Bagley, 82 Ill. App., 197, 48 L. R. A., 753; 1 Labatt on Master and Servant, Chap. XXI; Dallemand v. Saalfeldt, 175 Ill., 310; Hoffman v. Dickinson, 31 W. Va., 142; Dowd v. N. Y. O. & W. Ry. Co., 170 N. Y., 459; Penn. Rd. Co. v. Jones, 123 Fed. Rep., 753; Shebeck v. Natl. Cracker Co., 120 Ia., 414; Montgomery v. Seaboard Air Line Ry., 73 S. Car., 503; Nord v. Boston, etc., Mining Co., 33 Mont., 464; I. & G. N. Ry. Co. v. Harris, 95 Tex., 346; Foley v. Pioneer Min. & Mfg. Co., 144 Ala., 178; City of Greeley v. Foster, 32 Col., 292; White v. Lewistown & Y. F. Ry. Co., 87 N. Y. Supp., 901, 94 App. Div., 4.
    Late cases holding no inference of knowledge if risk not obvious, are: Worden v. Gore-Meehan Co., 83 Conn., 642, 78 Atl. Rep., 422; Tennis Co. v. Davis, 46 Ind. App., 436, 92 N. E. Rep., 986; Duffey v. Consol. Block Coal Co., 147 Ia., 225, 124 N. W. Rep., 609.
    The fact of the habitual drunkenness of Denise having been proven by from eight to ten witnesses and express knowledge of it by the president shown, opposite counsel wants knowledge of this disputed fact imputed to Marker.
    Marker’s duties being upon the street with his car and the officers of the company having their duties at the barn with Denise, it is not logical to infer that Marker knew or had equal opportunity to know the habits of Denise. Valley Ry. Co. v. Keegan, 87 Fed. Rep., 849, 31 C. C. A., 255; Bailey on Master’s Liability, 59, 182.
   Shauck, J.

In the relation of these exceptions to the judgment which should be rendered here the question first in order is whether the circuit court erred in holding that the original plaintiff could not recover on account of the alleged negligence of the company in employing Denise and retaining him in its service in view of his habits and conduct without alleging that he was himself without knowledge respecting them. Upon that subject there was neither allegation nor evidence.

In the rational development of the law of negligence and its application to the relation of employer and employe, comprehensive views of the subject have been taken to the end that not only justice should be done between the parties, but. that such rules should be devised and applied as would contribute as effectively as possible to the prevention of injuries from negligence. Usually a carrier is a corporation without organs for observation. If a natural person, his opportunity for observation is limited. But his relations to patrons and the public require that he be charged with the consequences of the negligence of his employes. To enable him to meet the obligation which this imposes upon him there have become recognized the defenses of fellow-servant, assumed risk, and acquiescence with knowledge, if that differs from assumed risk. If the original plaintiff had knowledge that the defendant had negligently employed one whose habits and conduct would likely lead to the injury of others, or was retaining such employe in its service, the communication of that knowledge to the employer' was a duty which he owed not only to himself and the company, but to others, and failure in that regard would defeat his recovery. But we are to ascertain what inferences should be drawn from the absence of averment of either party respecting the knowledge of the plaintiff. An obvious and helpful analogy is found in the established rules respecting contributory negligence which is always a matter of defense except when the case made by the plaintiff starts an inference that his own negligence contributed to his injury, when it is incumbent upon him to avert the inference by averment and by proof if the averment is denied. This analogy seems to be clearly recognized in the cases upon the subject of assumed risk, and the plaintiff is required to allege his want of knowledge only when his own averments start the inference that he had knowledge of the source of danger. The rule upon the subject received the following clear statement by this court in the case of L. S. & M. S. Ry. Co. v. Knittal, 33 Ohio St., 468: “If such employe, with a full knowledge of an habitual and continued negligence of the company or his superior fellow employe in some particular matter, acquiesces therein and continues in the service of the company, without any objection or effort toward a correction of the neglect, he thereby waives his right against the company and takes the .risk upon himself.” The rule was applied to prevent recovery by a brakeman for injuries which he had received in making a running switch in which dangerous mode of making switches he had participated. The direct question was presented in the case of Coal & Car Co. v. Norman, 49 Ohio St., 598, where the relation of the injured employe to the negligence of which he complained was shown by his own case to have been within his knowledge. It is true that through inadvertence this condition was omitted from the syllabus in that case, but the condition was plainly present in the record. The subject was again considered in Coal & Mining Co. v. Admr. of Clay, 51 Ohio St., 542, where the same condition was presented, that is, the case made by the plaintiff showed such opportunity for knowledge of the dangerous condition from which his injury arose as to require him to negative the inference of knowledge. The same condition was presented in the case of Coal Co. v. Estievenard, 53 Ohio St., 43. In Hesse, Admx., v. C. S. & H. Rd. Co., 58 Ohio St., 167, a recovery was denied on account of injuries to a locomotive fireman resulting from defects in the locomotive upon which he was employed because of the absence of the allegation that he had no knowledge thereof. In all of these cases the rule applied in the present case by the circuit court was applied to cases in which the injured employe was shown by the averments of the petition to have been in a position to have knowledge of the sources of danger and in some of them to have peculiar opportunity to be informed respecting it. If the facts alleged in the petition should show inferentially that the plaintiff could not have had knowledge, certainly there would be no reason in requiring the formal allegation that he did not have knowledge. So in the absence of facts appearing in the plaintiff’s case to start the inference that he probably had knowledge, why should the averment that he was without knowledge be required? It would seem to be extending a rule beyond its reason to require an averment of want of knowledge when the cause of action alleged does not suggest the probability of knowledge. In the present case it does not appear from the averments of the petition that the plaintiff had any special opportunity to become informed respecting the habits or condition of the car repairer. The employment of the original plaintiff was wholly, so far as the case shows, in the operation of his car upon the streets of the city and that of Denise was at the barn or shop. Though they were in the service of the same employer, their duties were separate and their meetings would naturally have been so casual and infrequent that the knowledge which should defeat a recovery in the case would not naturally have been acquired, and consequently the plaintiff’s default in duty in the respect considered would not be suggested by the case. It appears therefore that to require the original plaintiff to allege that he did not have knowledge of the negligence which the jury found to have resulted in his injury would be to extend the rule beyond the reason by which it is supported and that the circuit court erred in reversing the judgment upon that ground. Since this ground of recovery is not affected by the relation of superior and subordinate in the service of the company, we need not consider the other question with respect to which the courts below have differed.

Judgment of circuit court reversed and that of the common pleas affirmed.

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.  