
    Snyder, Admx., v. The C., C., C. & St. L. Ry. Company.
    
      Action against railroad company — For causing death of employe— Showing of petition — Law of neghgence and contributory negligence — Agency.
    A petition in an action to recover against a railroad company for the killing of one in its employ as station agent, which shows that, with the knowledge and direction of the company, the decedent was engaged in the work of loading and unloading cars on a side track next to the main track (which duties required him to be upon the main track), and while the decedent was upon and passing along the main track, engaged in said duties, and exercising due care on his part, the defendant company caused its train of cars to move, without noise, without signal or warning of any kind, or other precaution for the safety of the decedent, along the main track, to the place where the decedent was walking, and run upon decedent causing his death; and which further avers, that the duty of notice or warning devolved upon the company; that it was its duty to require the employes on the freight train to keep a lookout for the decedent and give warning of the approach of the train; that the employes in charge of the train could have known by the use of ordinary care that decedent was upon the track and in danger of being run onto by the train in ample time to have stopped the train and avoided the injury, but the engineer on moving- the train, and the fireman under his direction, failed to use ordinary care to protect decedent, but with knowledge that he was upon and crossing the main track, moved the train without signal or warning, and carelessly and negligently ran the train upon the decedent causing his death, sufficiently shows negligence on the part of the company and care on the part of the decedent to be good as against a general demurrer.
    (Decided June 20, 1899.)
    Error to the Circuit Court of Darke county.
    The action was against The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, to recover for the unlawful killing of Henry C. Snyder, of whose estate plaintiff in error is administratrix. In the petition it was averred, among other things, that:
    
      The defendant, at and near the town of Pitts-burg, Darke county, Ohio, maintained upon the north side of the main track of its railway a small depot or station building, and a station platform for the deposit and storage of articles of freight handled by defendant, and on the south side, along and near the main track, maintained a number of side tracks or switches, which were used from time to time by said railway company for the purpose of storing freight cars, switching trains and cars, loading and unloading freight from such cars, and transferring the same to said station building- and platform, and for other purposes connected with the management of said railway.
    On or about May 24, 1897, Henry C. Snyder, then in full life, was, and had been for some time previous, in the employ of said defendant as station agent at said station of Pittsburg, and among other things, under the orders and directions of said defendant, and with its knowledge, acquiescence and approval, the said Snyder was accustomed to assist in the loading and unloading of freight to and from the cars on said side tracks, and in transferring the same to and from the station platform on the north side of said main track, and to assist in locking and unlocking the freig’ht cars upon said side tracks and the main track, and in assisting in giving information as required by the men in charge of the trains upon said track as to the placing of freight cars from which freight was to be unloaded, or into which freight was to be placed, and under the orders and directions of said defendant, and with its knowledge, acquiescence and approval as aforesaid, and in the line of his employment as aforesaid, was constantly moving about and over said yards, tracks and switches.
    
      On said May 24, 1897, defendant had caused to be placed upon one of the side tracks at and near said station, a freight train, with an engine attached thereto, and containing a number of cars from which it was necessary to load and unload freight add which said cars were to be locked and unlocked by decedent in connection with his duties aforesaid, and which freight train was standing opposite to said depot platform, and the engine on which was attached to the western end of said freight train, and about fifty or seventy-five feet west of a point directly opposite said station building aforesaid, and which said engine was steamed up, and from which issued smoke and escaping steam, and also a certain amount of noise. At the same time, defendant had caused to be placed upon its tracks, about three or four hundred feet west of said station building, a freight train with locomotive, headed to the eastward, and standing still; that thereafter, and while the decedent and the other employes of defendant were engaged in unloading freight from the train standing upon said side track opposite said station platform, and in locking and unlocking the cars thereof as they were required and accustomed to do, and while decedent was upon and passing along the main track engaged in his duties aforesaid, and exercising due care on his part, the defendant carelessly and negligently caused its said train of cars standing upon said main track to the westward of said-station building, to move eastwardly, without noise, without signals or warning of any kind, or other precaution for the safety of its employes on said tracks, along- said main track to the place where decedent was walking, and to strike, knock down and run over the said decedent, cutting off both his limbs, from which injuries the said Snyder, after languishing for a few hours, died.
    That said defendant company knew at the time of said accident, and for some time previous, that the decedent and other of its employes were constantly on and over the said main track and switches, and that it was then and there the duty of said defendant company, before moving- said train of cars along and over said main track, past said station platform, to give signals and warnings to its employes of the approach of such train. And the defendant was further required to have the employes on said train to keep a lookout while passing on and over said tracks in front of said station platform, for the safety of the employes of said defendant, and that the employes of defendant in charge of said train could have known, by the use of ordinary care, that decedent was upon said track and in danger of being run onto by said train of cars, in ample time to have stopped said train and avoided said injury; but the engineer on moving said train, and the fireman, who was under his direction and control, failed to use ordinary care to protect said décedent, and failed and neglected to keep any lookout for decedent or the other employes of said company, but with knowledge that decedent was upon and crossing said tracks, moved the said train eastwardly as aforesaid through said yards, without signals and warnings as aforesaid, and without keeping lookout as aforesaid, and carelessly, negligently, recklessly and regardless of the said decedent and other employes using said tracks, ran and managed the said train as aforesaid upon and over said decedent.
    
      To this petition a general demurrer was interposed, which was sustained by the common pleas and judgment rendered for defendant in error.
    This judgment was affirmed by the circuit court.
    
      Allread & Teegawden, for plaintiff in error.
    We contend that where the railway company knows of its employes being upoD and over its tracks, as in this case at this station the railway company ought to use reasonable precautions in starting up and moving its trains, so as to give them warning. It is not unreasonable — at least, it is not for the court to say that it is unreasonable — to require the railway company to give these warnings, and to keep a lookout while passing over the tracks where its workmen are, in order to protect them, and we think that it is not negligence, as a matter of law, for the decedent, under all circumstances, while engaged in the duties of the company under its orders and directions, to assume that a train standing upon a track, and about to pass over the yards where' it is known that the employes are liable to be, will so start without signals or warnings, and without keeping any lookout for the safety of the employes.
    But whatever the rule might be, we think that the averment, “But the engineer on said moving train, and the fireman, who is under his direction and control, failed to use ordinary care to protect said decedent, and failed and neglected to keep any lookout for decedent or the other employes of said company, but with knowledge that the decedent was upon and across said tracks, moved the said train eastwardly as aforesaid through said yards without signals and warnings as aforesaid,’’ brings the case within the rule familiar to to the court,- and announced in the case of Railway Company v. Kassen, 49 Ohio St., 230. It shows that at the time, and during the approach of this train, the agents in control of the train had actual knowledge of the decedent being upon the tracks, and made no effort whatever to protect him from danger.
    
      L. F. Limbert, for defendant in error.
    The first claim made in the brief of plaintiff in error is, that the company- was negligent in running its train on the main track without giving any notice or warning of any kind to Snyder, while it knew that Snyder was crossing the main track to and fro, from the cars on the side track to the depot.
    The men operating the train that hit Snyder were under no obligation to give any signal, warning or notice of the moving of their train. The expectation that signals would be given by the trainmen on this train did not relieve Snyder from constant watchfulness. Railroad Co. v. Depew, 40 Ohio St., 121.
    It must be conceded that Snyder and the company, for a long time prior to the death of Snyder, occupied the position of master and servant.
    The manner of loading and unloading freight across the main track from the cars on the side track to the platform north of the main track he was familiar with. The conditions of the track and the surroundings in and about that station and all the dangers connected therewith Snyder was familiar with. He was familiar with the custom of unloading freight, etc., and acquiesced in it
    Therefore, having remained in the employment of the company without protest or complaint, with full knowledge of all the surroundings and the dangers connected with his agency and work at the station, as the petition shows, he assumed all risks. Railroad Co. v. Knittal, 33 Ohio St., 470.
    Snyder was under as great obligations to provide for his own safety from such dangers as were known to him, or were discernible by ordinary care on his part, as the company was to provide for his safety. Wonnell v. Railroad Co., 79 Maine, 405; Railroad Co. v. Bonner, 5 Ohio St., 541.
    It is the duty of a person approaching a crossing, or standing upon a railroad track where cars are being run, to look for approaching cars, and if he fails to do so, he is presumptively guilty of negligence that will prevent recovery, and this presumption of negligence can only be rebutted by facts or circumstances showing that it was not reasonably practicable to keep such lookout. Railroad Co. v. Snyder, 24 Ohio St., 670; Railroad Co. v. Elliott, 28 Ohio St., 341; Railroad Co. v. Rothgeb, 32 Ohio St., 66.
    If the petition showed that Snyder, before going •on the track, had looked and seen no train on the main track, and that his duties required him to walk on the track and with his back to the train, that run him down, busily engaged stooping down at his work, or things of that character, then there .might be some circumstance that would bring the •case within the province of a jury. Compare the .facts and circumstances stated in this petition with the facts and circumstances shown in the •case of Railroad Co. v. Margrat, 51 Ohio St., 139, .and then can this court say, under the rule in that case, that, as a matter of law, Snyder was not guilty of negligence in failing to keep a lookout for .his own safety ?
    
      Even conceding that the company was guilty of negligence, there can be no question but what Snyder was guilty of negligence, in not looking out for himself and avoiding the danger, which he could have done, had he kept a constant watch on this train, that he knew would start, at almost any time.
   Spear, J.

In support of the demurrer it is contended that the crew operating the train which ran upon Snyder, was under no obligation to give any signal, warning or notice of the moving of the train; the expectation that signals would be given did not relieve Snyder from the duty of constant watchfulness. He was station agent, not in any way under the control of the train men; was familiar with the tracks and manner and custom of loading and unloading freight across the main track from the cars on the side track, and with all the dangers connected with that particular employment, and the manner of it, and acquiesced in it. Having thus remained in the employment of the company without protest or complaint, with full knowledge of the manner of conducting that work, and the dangers connected with it, as the petition shows, he assumed all risks. He was under as great obligation to provide for his own safety from the dangers incident to the work, or were discernible by ordinary care on his part, as the company was to provide for his safety; he could not go blindly to his work where there was danger, and having thus brought injury on himself, impose responsibility for the consequences upon the company.

It may be conceded that if the company owed Snyder no dúty as to care for his safety, there can be no liability. The assumption that it did not owe any duty, however, begs the whole question. We conceive that the proper answer does not depend upon whether or not .the train men had authority or control over Snyder. Manifestly they did not have. The question is did the company upon any ground, or for any reason, owe to Snyder the duty of caring for him under the circumstances? It may be that, under the rule of the common law, the men having charge of the train and Snyder were fellow-servants, but the act of April 2, 1890 (87 O. L., 149), excludes from that category certain of those who are in a separate branch of the same service. Among the train men in charge of the freight train, it is averred there was an engineer who was the superior of others engaged in the management of the train, and there is nothing in this petition which shows, either by statement or inference, that the station agent stood in such relation to the company as to class him as a fellow-servant with the engineer or trainmen. It appears that he was in a separate branch of the service, and it does not appear that he had authority to direct or control any co-employe whatever. So that, if the allegations of the petition are sufficient to charge a duty of caring for Snyder which was not performed, the company will not be exonerated on the ground that the neglect of that duty was the act of a fellow-servant. But if there can be doubt as to this conclusion, it is to be observed that the negligence charged is not confined to the omissions of the train men. It is averred (not, perhaps, in the most distinct language, but explicitly enough, we think, to resist a general demurrer), that the duty of care rested upon the company itself.

We are of opinion that testing the question by the allegations of this petition, it cannot, be said that the company did not owe Snyder the duty of giving warning of the approach of the freight train. The deceased, with knowledge of the company and by its orders, was engaged in a duty which required him to be upon the main track, and thus in a place of danger. Strict attention to the work in which he was thus engaged might have been inconsistent with constant watchfulness as to approaching trains. It is not impossible that this may have been the ease, and it does not appear from the petition that it was not. If it were then, under the holding of this court in Railway Co. v. Lavalley, 36 Ohio St., 221, and in Railway Co. v. Murphy, 50 Ohio St., 135 (where it is held that it is the duty of a railroad company to make such provision for the safety of its employes as will afford a reasonable protection against the dangers incident to their work), the company should have taken reasonable care for Snyder’s safety, and a failure to perform the duty was negligence on the part of the company. And if the duty rested upon the company to give warning to Snyder of the approach of the train, then Snyder was not necessarily negligent because of his reliance upon the train men to give such warning. But the petition goes further. It avers that the employes of defendant in charge of the train could have known, by the. use of ordinary care, that decedent was upon the track and in danger of being run onto by the train, in ample time to have stopped the train and avoided the injury; but the engineer on moving the train, and the fireman who was under his direction and control, failed to use ordinary care to protect decedent, and failed and neglected to keep any lookout for the decedent or the other employes of said company, but with knowledge that decedent was upon and crossing the tracks, moved the train eastwardly through the yard, without signal or warning, and without keeping a lookout, and negligently ran the train upon and over decedent. This would seem to bring the case within the principle of Railroad Co. v. Kassen, 49 Ohio St., 230, where the holding is that the rule that the negligence of the injured party, which proximately contributes to the injury precludes him from recovering, has no application where the more proximate cause is the omission of the other party, after becoming aware of the danger to which the former is exposed, -to use a proper degree of care to avoid injuring him.

A number of cases decided by this court are cited by counsel for defendant in error as supporting his contention. In Railroad Co. v. Depew, 40 Ohio St., 121, Depew had been transacting business at the station. Upon leaving he stepped and continued to walk on the main track of the road on which he knew there was standing a locomotive with two cars attached. He looked at the train. It was standing still. He walked on and did not again look, expecting that if the train moved he, would hear a signal. None was given. The train backed upon him, but at a speed and in a way not unusual. The trainmen did not know nor have reason to suspect that anyone was or would be upon the track. Depew was not in the performance of any duty to the company when he went upon the track. He voluntarily and needlessly put himself in a place of great danger, a situation requiring constant watchfulness. He failed to give it and was injured, but he could not recover; a case wholly different from the one stated in the petition. In Railway Co. v. Knittal, 33 Ohio St., 468, the plaintiff sought to recover for. injuries received in making a flying switch. He was refused a recovery on the ground that he had knowledge of the manner of making the switch; that it was made in the ordinary way; that he continued in the employment of the company with full knowledge of the dangers of the work, and hence should be held to have assumed the risk. The petition in the case at bar does not show this kind of a case. No custom with respect to moving cars in the yard is stated, and none appears. It seems hardly worth while to further review the decisions cited. Suffice it to say that the company’s contention is not supported by any of them.

We are of the opinion that the petition states a cause of action. The judgment of both courts will be reversed and the cause remanded for further proceedings.

Reversed.  