judgment, and this proceeding is to review the judgment of affirm

ance.

Wm. Disney, for plaintiff in error; Hoadly, Johnson & Colston, for defendant in error.

JOHNSON, J.—If there was evidence tending to support the issue, the Court below erred in arresting it from the jury. It is only where no evidence is introduced by the plaintiff tending to support the issue, or where it is such as to show clearly that he has no cause of action that it is the duty of the Court to direct judgment of nonsuit. But if the evidence introduced is appropriate to the issue, although it may be slight and not sufficient in the opinion of the Court to entitle the plaintiff to a verdict, still the jury should be permitted to pass upon it, and it would be wrong in the Court to decide a non-suit.

Such a motion involves an admission of all the facts which the evidence tends to prove, and presents only a question of law, whether each fact indispensable to a right of action, put in issue by the pleadings, has been supported by some evidence. Ellis & Morton v. Ohio Life and Trust Co., 4 Ohio St. 645. The issue made by these pleadings is whether the corporation is liable for causing the death of Martin Dick. The defence in substance is that the railroad company had performed its whole duty in the premises and is not responsible for the negligence of its employees engaged in running this train, who were fellow-servants of Dick and engaged in the same common employment; also that Dick was guilty of contributory negligence.

The petition explicitly charged that the corporation was at fault in managing and operating the train which ran into and killed Martin Dick, and that the manner in which it ran this train was by the default and negligence of defendant "and its engineer and conductor in charge of said train."

...

The answer says that Dick, being a section boss, and as such engaged with other employees of said defendant, and especially those in charge of the train in question, . . . were fellow-servants and co-employees, and denies that defendant was guilty (not that these co-employees, including the engineer and conductor, were not guilty). The answer also denies negligence on its part, as to speed of train, failure to give signals at crossings, etc.

The only question before us is whether there was evidence tending to show the legal liability of the corporation. In examining this point, we do not intend to discuss, much less question, the principle established in Whaalen v. The Mad River R. R. Co., 8 Ohio St. 250, that when one servant is injured through the carelessness of a fellow-servant engaged in a common employment, when there is no relation of superior or subordinate, and the employer himself is guilty of no fault, such employer is not responsi

ble. That principle was then applied to a case, where a hand engaged in repairing a track, was injured by a hand on the engine carelessly throwing out a stick of wood from a passing train. It was there held, that the track repairer and a hand on the engine, whose duty it was to pass firewood from the tender to the engine, and to cast from the train sticks unsuitable for use, were fellowservants coming within the above rule. This rule has been applied as between employees on trains in Manville v. R. R. Co., 11 Ohio St. 417; R. R. Co. v. Webb, 12 Ohio St. 475; R. R. Co. v. Lewis, 33 Ohio St. 196; R. R. Co. v. Ranney, 37 Ohio St. 665; and R. R. Co. v. Devinney, 17 Ohio St. 197. The most liberal application of this rule does not absolve the company from such acts of negligence to the injury of its employees, as are not the result of the carelessness of fellow-servants. It is therefore the duty of the company to provide suitable and safe machinery and other appliances to operate its trains. R. R. Co. v. Webb, supra; Gatrick v. Wilson, 4 Ohio St. 566; R. R. Co. v. Keary, 3 Ohio St. 202; R. R. Co. v. Barber, 5 Ohio St. 541. This principle applies to all cases where the negligence of an employee is imputable to his employer by reason of the fact that in doing the act he is to be regarded as the representative of his master. In R. R. Co. v. Keary, it was said:

"As corporations act only through their agents and officers authorized to exercise the functions conferred by their charters, there is much force in the view of the late Chief Justice Hitchcock, 'that the superintendent (and conductor where running a train) of a railroad ought to be regarded as the proper representatives of the company, and their acts treated as those of the company." 3 0.

S. 201-210.

This principle is illustrated in Ry. Co. v. Henderson, 37 Ohio St. 552, where it is said that a breach of duty by the master is not one of the risks which the servant assumes in entering his service. This breach of duty may be the employment of other incompetent servants, the failure to provide safe and suitable machinery, or to notify the servant of peculiar dangers known to himself but not to the servant, or in needlessly placing the servant in a place of danger.

In that case the company was held responsible for injury to a laborer on a construction train, arising from an order of the superintendent of the company, with respect to the management of a particular train. If the order was an unreasonable one, it was held to be no answer to say, that a fellow-servant of the injured party was also guilty of negligence in its execution. So where a foreman of a set of hands, whose business was to repair cars on a track in the yard in which it was the custom to make up trains, placed a hand under a car to work, and failed to use reasonable care to pro

tect him from the danger, his negligence was imputed to the company. R. R. Co. v. Lavalley, 36 Ohio St. 221.

It was also held that it was the duty of the company to make such regulations of provisions for the safety of its employees as will afford them reasonable protection against the dangers incident to their employment.

In view of these principles did the Court err in holding that there was no default or negligence imputable to the company in running this train, or rather that there was no evidence tending to show that the company was liable?

The answer was that every precaution was taken to guard against injury to passengers and employees, and that by rules and regulations, and by other means, it had done all in its power to accomplish that end, but no evidence of this appears in the bill of exceptions, which is said to contain all the evidence.

The evidence strongly tends to show that the locality is a dangerous one; that it was a double or triple curve, and that it was impossible for one engaged at work where deceased was to see an approaching train but a short distance; that there were several public crossings, which the train had to cross in approaching the place where deceased was at work; that it was in a thickly settled neighborhood within the city limits; that no signal of the train's approach was given by bell or whistle, either at these crossings or in approaching the curve, which he could have heard if given, and that the train was engaged in a brisk race with another train on a parallel road. One passenger says: "The train was going at a terrific rate of speed. I was thrown against the window, the velocity of the train threw me. Another says: "The train was behind time and was racing with the O. and M. train," that in going around the curve he was thrown off his feet. Still another gives a graphic description of this exciting race, and several testify that no signals were given. It was a train in charge of a conductor and engineer. There was no evidence tending to show that this dangerous proceeding was owing to the recklessness of the engineer. For aught appearing it was in strict accord with the directions of the conductor, and with the rules and regulations of the company. In the absence of proof to that effect, the Court below erred in assuming that Martin Dick came to his death by the negligence of the engineer, and in holding, as it must have done, that there was no evidence tending to show that the company was liable.

Whether the company is liable for the culpable conduct of the engineer, in case it should appear it had exercised proper care for the safety of its employees, or whether, in such a case, the engineer is to be regarded as a fellow-servant, and so within the rule in Whaalen's case, we need not now determine. All we now decide is, that the evidence given to the jury tended to make a case of

liability against the company, and it was for the jury, under proper instructions, to determine the question at issue.

By the act of 1877 (69 Ohio Laws, 49,) the company is made liable in damages occasioned by a failure of the engineer to sound the whistle and ring the bell at a public crossing on the same level with its track. Whether this is for the protection of travellers on the public road only, or extends to persons working upon the track, we need not now consider. We think that even in the absence of such a statute, it is the duty of the company to make and enforce reasonable rules and regulations to guard against danger at such crossings and in dangerous places as this apparently was, and that deceased, when he entered the employment, had a right to expect the performance of that duty.

Judgment reversed and cause remanded for a new trial.

See note, 5 Am. and Eng. R. R. Cas. 525.

HALL

V.

THE MISSOURI PACIFIC RY. Co., Appellant.

(74 Missouri Reports, 298. October Term, 1881.)

A section foreman, whose duty is to keep the track in repair and free from obstructions, in this particular represents the company, and is not a fellow servant with the switchman. Lewis v. R. R. Co., 59 Mo. 495, followed.

A petition which alleges that defendant, a railroad company, negligently and carelessly permitted a loose iron rail to remain upon the path alongside the track used by switchmen in the necessary discharge of their duties, is not defective by reason of the omission to allege that defendant had knowledge, or by ordinary attention to its duties would have known, that the rail lay upon the path. The omitted statement is substantially contained in the allegation made.

An instruction declaring the duties of a section foreman to be what he has testified they are, is not objectionable in the absence of any other evidence on the subject.

APPEAL from Osage Circuit Court. Hon. A. J. Seay, Judge. Thomas J. Portis and E. A. Andrews, for appellant.

Plaintiff relied for recovery on the case of Lewis v. R. R. Co., 59 Mo. 495. The decision in that case, when made, was in conflict with the decisions of this and other states, and ought now to be overruled or so modified as to harmonize with the legal principles governing the universal law of master and servant. The plaintiff and the track-men are fellow-servants, and by this contract the former assumed all the ordinary risks incident to their

co-employment by a common master. Cooley on Torts, p. 545; Strange v. McCormick, 1 Phil. 156; Pyne v. R. R. Co., 54 Ia. 223; S. C., 37 Am. Rep. 198; Mich. Čen. R. R. Co. v. Austin, 40 Mich. 247; Waller v. S. E. Ry. Co., 2 Hurl. and Colt. 102; Lehigh Valley Co. v. Jones, 86 Pa. St. 432; McAndrews v. Burns, 39 N. J. L. 117; Quincy Min. Co. v. Kilts, 42 Mich. 34; Holden 7. R. R. Co., 129 Mass. 268; S. C., 37 Am. Rep. 343; Wilson v Merry, L. R., 1 H. L. Sc. and Div. App. 326; Walker v. R. R. Co., 128 Mass. 8. If the section foreman was not a fellow-servant. still the court erred in not distinguishing between his acts as a co, laborer and his acts as and for his master. Albro v. Canal Co., 6 Cush. (Mass.) 75; Ford v. R. R. Co., 110 Mass. 240; Warner v. R. R. Co., 39 N. Y. 468; Brickner v. R. R. Co., 49 N. Y. 672; Wood's Law of Master and Servant, 888. The petition was fatally defective in not alleging any knowledge of the defect complained of on the part of the defendant, or that by the exercise of reasonable care he might have known of it. If such an allegation were not a substantial element of recovery, then the court submitted to the jury an issue not made by the pleadings. 72 Mo. 414. The law does not define the duties of a section foreman, and, therefore, instruction three should not have been given. 67 Mo. 122; 86 Pa. St. 432.

Belch & Silver and R. S. Ryors, for respondent, cited 59 Mo. 495; 71 Mo. 71, 77, 78; 65 Mo. 225; McGowan v. R. R. Co., 61 Mo. 532; 1 Dillon, 312; 51 Mo. 454; Buesching v. Gaslight Co., 73 Mo. 230, 231.

HENRY, J.-This action was instituted by plaintiff for damages for an injury received by him while in the services of defendant as a switchman, in consequence, he alleges, of the negligence and carelessness of defendant in permitting a loose iron rail to lie upon the path plaintiff had to pursue in the discharge of his duty as switchman, and by reason of which, while so employed, he was thrown down an embankment and injured. The accident occurred at Chamois at eight. At that station there are six or seven tracks, and in switching cars from one track to another the switchman has to get off and adjust the switch. On this occasion, when he stepped from the caboose to signal the engineer, his foot was caught under the iron rail lying loose in his path near the track, and he was thrown down the embankment and seriously injured. It was the duty of the section foreman, as testified by the foreman, to keep the tracks in repair and to remove rails and other obstructions which might be on or so near the track as to be dangerous. On the day of the night in question, the section foreman had taken up some rails in the yard, and the reasonable deduction from the evidence is, that the rail which caused the injury was one of those rails.