
    The New York, Chicago & St. Louis Railroad Company v. Ropp.
    
      Rules for car inspectors — Reasonable, when — Agreement to obey rule binding — Failure to obey — Not excused by consent of superior, when — Constitutes negligence — Master and servant.
    
    1. A rule which requires car inspectors or car repairers, when- at work under or about a car or train, to see for themselves that a blue flag by day or a blue light by night is displayed at each end of the car or cars, upon which they are working, is a reasonable rule, providing for the safety of employes and not limiting the master’s liability for negligence; and an agreement with the master by the servant at the time of his employment that he understood such rule and would obey it, is binding upon him.
    2. The failure to obey such rule is not excused by the presence or consent of another servant of-the master, who is superior to the servant who agreed to obey such rule, when the superior servant is not authorized to represent the master in the making or changing of rules or contracts; and failure to obey'the rule under such circumstances is negligence per se.
    
    (No. 10285
    Decided June 25, 1907.)
    Error to the Circuit Court of Hancock County.
    The plaintiff below brought suit to recover damages for an injury which he received while in the employ of- the Railroad Company and while he was upon a cut of cars working as a car repairer, in consequence of the failure to display signals, as required by the rules. When the plaintiff entered into the employment of the defendant below, he was shown certain printed rules of the Company and asked to read them, which he did. He was then asked if he understood them and said that he did, and he then signed a paper which contained a statement and promise that he had read those rules and would obey them. The rules, which were admitted in evidence upon the trial, were as follows: No. 36. “A blue flag by day and a blue light by night, placed .’on.the end of a car, denotes that car inspectors or car repairers are at work under or about'the.car or, train. . The car or train thus protected must not be coupled to or moved, until the blue signal is removed by the car. inspectors or car repairer.” No. .377. “Car inspectors report to and receive their instructions from master mechanics. They are.required to be fully conversant with,.the rules •governing interchange of ■ cars and inspect cars in accordance with same and with instructions .issued by the, superintendent of motive power'; must be prepared to make- any slight repairs that may be required, must be thoroughly familiar with the construction and manipulation of-air brake and steam heat equipment and air signal. When inspecting and repairing cars that shohld not be moved, they must protect themselves by placing conspicuously a blue signal at both ends of the car, as provided in rule 36.” No. .378. “Car repairers report to and receive their instructions from the foreman of the car repairers under the authority of the master mechanic. They are required in all cases, when doing work on or under cars which should not be moved, to see for themselves that a blue flag by day, or a blue light by night, is placed at each end of the car or cars upon which they are working.”
    The case was submitted to the jury substantially upon two propositions of law. First, whether Whalen, who was a car inspector and repairer, and who had called the plaintiff to the work which he was doing and was directing him in regard thereto, was the superior of the plaintiff; and whether the plaintiff was actually under his direction and control and bound to obey him, 'either by the terms of his employment or by the exercise of such custom or authority as was usual in the conduct of that particular business in behalf of. the Railroad Company. Second, if the jury should find that Whalen did have the. power and authority of direction and control over the plaintiff at the time of the accident, and that Whalen designated the place where plaintiff was at work when he was injured, and that plaintiff proceeded to work under such circumstances and conditions as gave him to understand in face of the rules requiring him to place a blue flag-at either end of the cars, that such flags had been so placed by Whalen, and that it was because such flags had not been placed that the accident occurred, the verdict should be for the plaintiff. The defendant moved the court to arrest the testimony from the jury and direct a verdict for the defendant, and also requested the court to charge the jury, that the court as a matter of law directs the jury to return a verdict in favor of the defendant Railroad Company, and also that it was the duty of the plaintiff himself under the rules to see that the blue flags were displayed while at work on this car, and that if he failed to so display them he could not recover. The court overruled the motion tó direct a verdict and refused to give the instructions requested. The verdict and judgment were for the plaintiff in the court of common pleas, and the judgment was affirmed by the circuit court. This proceeding in error is to reverse the judgment of both courts. ' .
    
      Mr. John H. Clarke and Messrs. Blackford & Blackford, for plaintiff in error.
    
    The law of Ohio required the defendant to provide rules for the protection of the plaintiff when at such work as he was engaged in at the time. Railway Co. v. Lavalley, 36 Ohio St., 221; Railway Co. v. Murphy, Admr., 50 Ohio St., 135.
    The law of this state also required the plaintiff to obey such rules when brought to his notice, and if - injured through failure to obey them he should not recover. Wolsey v. Railroad Co., 33 Ohio St., 227.
    This disobedience of rules is uniformly held per se negligence preventing recovery. Railway 
      
      Co. v. Craig, 73 Fed. Rep., 642, 80 Fed. Rep., 488; Railroad Co. v. Kane, 118 Fed. Rep., 223.
    All this to be sure, is familiar and undisputed law, and was admitted as such in the courts below.
    Under the following authorities it seems to be clearly the law that even if Whelan had been the admitted superior of Ropp and had distinctly ordered him to go to work without the protection required by the rule being provided, yet Ropp could not recover, for the reason that Whelan did not have authority to suspend or abrogate a rule of the master which pressed as much upon Whelan as upon Ropp himself. Railroad Co. v. Findlay, 63 Fed. Rep., 228.
    Can it be thought for one moment that it was within the scope of the agency of Whelan, an inspector and car repairer, next to if not at the very base of the organization of the defendant’s employes, to cancel or suspend a rule provided by the company for the government of Ropp, which required him to see for himself that he was protected by flags? Railway Co. v. Reesman, 60 Fed. Rep., 370; Russell v. Railroad Co., 47 Fed. Rep., 204; Railroad Co. v. Roach, 110 Ala., 266; Railroad Co. v. Rush, 71 Miss., 987; Keenan et al. Admx., v. Railroad Co., 145 N. Y., 101.
    Ropp was guilty of such contributory negligence that wholly irrespective of the rule we have thus far considered, he should not recover in this action. Stratton v. Railroad Co., 95 Ill., 25.
    
      Messrs. Franks & Franks and Messrs. Mc-Conica & Dwiggins, for’ defendant in error.
    The first question properly submitted to the jury by the trial court, was whether or not Whalen was Ropp’s superior.
    
      Whatever may be the rule in other cases and in other jurisdictions, for determining who are and who are not fellow servants, the subject as to railroad employees in this state is regulated by statute. Section 3365-22, Revised Statutes.
    Whether or not Whalen had power or authority to “direct or control” Ropp, was a question of fact to be submitted to the jury under proper instruction. Railroad Co. v. Margrat, 51 Ohio St., 130.
    We think the evidence upon the question of the relation of Whalen and Ropp clearly establishes the proposition that Whalen had the right to direct and control Ropp in his work.
    It is the well established rule in this country, that an employer is bound to exercise ordinary care to give his employe a reasonably safe place to work, and to furnish him reasonably safe appliances with which to do his work, and when such employe is engaged in the performance of his-duty, it is the duty of the employer to exercise ordinary care to see that no injury is done to him. Railway Co. v. Lavalley, 36 Ohio St., 221.
    . • This case aside from the claim of contributory negligence made by the defendant is, we think in all respects a parallel one to the case at bar. Railway Co. v. Henderson, 37 Ohio St., 549; Dick v. Railroad Co., 38 Ohio St., 389; Railway Co. v. Roe, Admr., 15 Cir. Dec., 628.
    The latter case was recently affirmed by this court.
    Numerous other authorities might be cited, in support of this general proposition, but it is so genérally understood and acknowledged as to render the citation of other authorities superfluous.
    That the railroad company, is responsible for the negligence of a foreman is well settled by: Stone Co. v. Kraft, 31 Ohio St., 287; Railway Co. v. Ranney, 37 Ohio St., 665.
    'We contend that Railway Co. v. Reesman, 60 Fed. Rep., 270, is sharply in point as supporting one of the propositions that we are contending for, to-wit: That if Ropp were acting in obedience to a direct command from his immediate superior he will be relieved from the consequences naturally following the willful and wanton violation of the known rule of the company. Russell v. Railroad Co., 47 Fed. Rep., 204; Gleason v. Railway Co., 73 Fed. Rep., 647.
    We desire in connection with the above cited cases and others cited by plaintiff in error, to call the court’s attention to the distinction between the rule as to fellow servants and the authority of superiors, vice principals, etc., as applied by the federal courts, and the rule recognized by the courts of Ohio. In this state we understand, an employe whose duties constitute him a superior within the meaning of the statute, hereinbefore referred to, defining who are and who are not fellow servants, becomes the alter ego of the company so far as his authority to give orders to the one immediately under his direction and control is concerned, and such orders and directions are as binding on and as much a protection to such immediate subordinate as though given by a superintendent, or other officer of the company.
    We insist if the rule was knowingly violated by the plaintiff the direct order of Whalen, his superior, and the circumstances surrounding the transaction, would relieve him from the charge-of contributory negligence. 20 Am. & Eng. Ency.Law, 2d Ed., 138, 147; Railway Co. v. Brown, 56 Fed. Rep. 804; Thompson, Admr., v. Railway Co., 14 Fed. Rep., 564; McKune v. Railroad Co., 17 Am. & Eng. Railroad Cases, 589; Railway Co. v. DeBray, 71 Ga., 406; Railway Co. v. McLallen, Admr., 84 Ill., 109; Norris v. Railway Co., 88 Ill. App., 614; Car Co. v. Parker, 100 Ind., 181; Newbury v. Lumber & Mfg. Co., 100 Ia., 4413 Crowley v. Cutting et al., 165 Mass., 436; Schlacker, Admr., v. Mining Co., 89 Mich., 253; Halliburton v. Railroad Co. 58 Mo. App., 27; Shortel v. City of St. Joseph, 104 Mo., 114; Smith v. Railroad Co., 72 Plun, 545; Lofrano v. Water Co., 55 Hun, 452; Brown v. Railway Co., 10 Cir. Dec., 278; Tagg v. McGeorge et al., Exrs., 155. Pa. St., 368; Stackman v. Railway Co., 80 Wis., 428; 48 L. R. A., 753; 53 L. R. A., 877; 58 L. R. A., 237; Engine Co. v. Schelies, 61 Ohio St., 298; Herdler v. Stove & Range Co., 136 Mo., 3; Moore v. Railway Co., 85 Mo., 588.
    While in case at bar, there was no express promise on the part of Whalen to protect the plaintiff from injury while under the car, his acts and all circumstances surrounding the transaction present as strong a case in favor of the presumption, that the necessary protection had been taken, as was presented in that case, that the necessary precautions would be taken, and if the servant was excusable for' the violation of a rule, in the case cited, he would be excusable in the case we are considering.
    .Counsel further cited and commented upon the following authorities: Mason v. Railroad Co., 111 N. C., 482; Peterson v. Railway Co., 67 Mich., 102; Improvement Co. v. Munson, 14 Wall., 442; Rail
      
      road Co. v. Hambleton, 40 Ohio St., 496; Canon, Admr., v. Railway Co., 101 Ia., 613; Taylor v. Railroad Co., 121 Ind., 124; Coal Co. v. Estievenard, 53 Ohio St., 43; Railway Co. v. Gilbert, 2 C. C., N. S., 432; Village of Monroeville v. Root, 54 Ohio St., 523.
   Davis, J.

We assume that Whalen was .not a fellow servant with the plaintiff and .that the plaintiff was actually under the direction and control of Whalen in doing the work on which the plaintiff was engaged at the time he was injured, since the jury must have so found under the instructions of the court. It is a conceded fact, however, that the plaintiff entered into employment with the defendant under a written contract or statement to the effect that he had read and understood certain rules of the defendant relating to such-employment and that he would obey them. One of those rules provided that car inspectors “are required to be fully conversant with the rules governing interchange of cars and inspect cars in accordance with the same and with instructions issued by the superintendent of motive power,” and “when inspecting and repairing cars that should not be, moved, they must protect themselves by placing conspicuously a blue signal at both ends of the car, as provided in rule 36.” Another rule requires that “car repairers report to and receive their instructions from the foreman of car repairers under the authority of the master mechanic;” and “they are required in all cases when doing work on or under the cars which should not be moved, to see for themselves that a blue flag by day, or a blue light by night, is placed at each end of - the car, upon which they are working.” The rule 36, which has been referred to, reads as follows: “A blue flag by day and a blue light by night, placed on the end of a car denotes that car inspectors or car repairers are at work under or about the car or train. The car or train thus protected must not be coupled to or moved, until the blue signal is moved by the car inspectors or car _ repairers.”

. It is a humane requirement of the law that railroad companies shall make such reasonable rules and regulations as will tend to minimize accidents in the conduct of their hazardous business. The rules in question not only put it in the power of car inspectors or car repairers to absolutely safeguard themselves when at work under or about a car or train of cars; but it is made the imperative duty of engineers and trainmen to respect the signals. The car or train which carries a blue signal is “protected” and “it must not be coupled to or moved.” The rules are therefore fair and reasonable; and indeed they impose on the railroad operatives no more than ordinary care in the preservation of life and the prevention of injuries.

The stipulation in the contract of employment that the plaintiff would obey these rules and “see for himself” that the signals required for his protection were displayed, is not void as against public policy; because it does not exempt the railroad company from liability, or limit its liability, for the consequences of its own negligence. Pennsylvania Co. v. Shearer, 75 Ohio St., 249. It is no more and no less than what it purports to be, a reasonable condition in the contract of employment that the employe will- faithfully observe the rules which are essential to his own safety.

The plaintiff in this case admits that with full knowledge of the purport of the rules, he signed a written promise to obey the rules, which required him “in all cases,” when at work on or under a car which should not be moved, “to see for himself” that the proper signals were “conspicuously” displayed. He admits that at the time he was hurt he and Whalen did not “see for themselves” that the signals were placed as required by the rules; and that in consequence of that omission, although the contractual obligation may have been on both of them and upon one as much as the other, he was injured. But he claims, and the jury was so instructed by the court, that because of the presence of a superior, Whalen,, whose duty to likewise observe the rules is undisputed, and because Whalen had directed the plaintiff where to work and what to do, the plaintiff is entitled to recover, if he “proceeded to do the work under ■such conditions and circumstances as gave him to understand, and the right to understand, in face of the rules requiring him to place a blue flag at either end of the cars that such flags had been so placed by Whalen.” In other words, although he had not been told by Whalen to disregard the rule and although he had not looked to see if the signals were placed and nothing had been said on the subject, he had the right, when called by Whalen to come and help him on the repairs on which Whalen was working,- to take it for granted that Whalen had done his duty, or to infer from Whalen’s conduct and surrounding circumstances, that the rule was suspended for the time being.

This theory of the case does not seem to us to be tenable. For aught that appears the rules were equally obligatory on both Whalen and the plaintiff. They certainly were binding on the plaintiff and the violation of the rules by Whalen, whether he were a superior or not, could not release the plaintiff from his contractual obligation, which was made for the benefit of both himself and his employer. Nor could Whalen either expressly or impliedly' suspend the operation of any rule for a single .moment. It does not appear in the record, and is not to be presumed, that he had any authority from the company to make contracts or enact rules for it; and if he had no authority to make them, he had no authority to break them, or to disregard, abrogate, suspend or repeal them. Neither can such authority be implied from the fact that Whalen had authority to direct and control the plaintiff in the performance of his duties as a car repairer. His authority to control and direct was authority to control and direct within the limitations of the rules prescribed by the Company for the government of all employes. The rules required that car inspectors should “be fully conversant * * * with instructions issued by the superintendent of motive power” and that “when inspecting and repairing cars that should' not be moved, they must protect themselves by placing conspicuously a blue signal, * * * as .provided in rule 36.” Both Whalen and the plaintiff therefore must have known that rule 378 made it imperative to put out the signals “in all cases when doing work on or under cars which should not be moved.” There is no room here f.or misunderstanding or implication. The rule is to apply in all cases, and therefore neither had Whalen the right to waive the rule in any case nor had the plaintiff any right to infer a waiver of it in any case. There is not even room for an argument from the necessity of the case; for the plaintiff could have obeyed the order of his superior and still have protected himself from injury by obeying the rule. He chose rather to take the chances in the performance of a little task which probably would take less time than would be consumed in putting the blue flags at each end of the cut of cars.- It was a plain assumption of the risk by the plaintiff, in the sense of taking the chances, a risk which he had expressly agreed with his employer that he would not take. Richmond & Danville Railroad Co. v. Finley, 63 Fed. Rep., 228, 231. It was said by Brewer, J., in Atchison, T. & S. F. R. Co. v. Reesman, 60 Fed. Rep., 370, 378, that, “The question is not one of obedience to orders, but of a compliance with rules; and, generally speaking, the duty of compliance is not waived by the mere fact that some controlling official has knowledge of the failure to comply.”

A different result might be reached if there were an. habitual violation of the rule, with knowledge thereof and acquiescence therein by such officers of the company as are authorized to act in its behalf in the making and changing of rules; but such a state of facts is expressly disclaimed in this case.

The views which we have here expressed are strongly supported in York, Admr., v. C. M. & St. P. Ry. Co., 98 Ia., 544, in which an engineer disobeyed a rule in obeying the conductor’s signal to start the train and was injured; in Rich mond & Danville Railroad Co. v. Rush, 71 Miss., 987, in which a brakeman was injured through breach of a rule while obeying an order of the conductor; in a similar case in Russell v. Richmond & Danville Railroad Co., 47 Fed. Rep., 204; in Atchison, T. & S. F. R. Co. v. Reesman, 60 Fed. Rep., 370, involving the violation of a rule with knowledge and assent of the conductor, in Richmond & Danville Railroad Co. v. Finley, 63 Fed. Rep., 228, where there was a violation of a rule' in obedience to order of engineer or conductor; and in Alabama Great Southern R. R. Co. v. Roach, no Ala., 266.

The defendant in error invokes the authority of Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St., 298. We do not regard that case as controlling upon the facts here presented. Cincinnati Gas & Electric Co. v. Johnston, 76 Ohio St., 119.

The court of common pleas erred in refusing to direct a verdict for the defendant on the undisputed facts and the circuit court erred in affirming the judgment of the court of common pleas. The judgments of both courts are

Reversed and Judgment rendered for Plaintiff in Error.

Shauck, C. J., Crew and Spear, JJ., concur.  