PERSONAL INJURIES — DAMAGES—PRACTICE.

[Mahoning Circuit Court,

April Term, 1896.]

Daubie, Erazier and Burrows, JJ.

#### † P. & L. E. R. R. Co. v. Blair.

*L*Pact Admissible in Evidence Without Amending Petition.

Where, in an action to recover damages for personal injury, the petition alleges an injury to the hand “necessitating the amputation of three fingers,” it is competent upon the trial, without amending the petition or filing a supplemental petition, to prove that since the commencement of the case it has become necessary to amputate the remainder of the hand at the wrist, as a direct result of the injury complained of.

2. Conductor Getting ore Train While in Motion, is Evidence oe Contributory Negligence.

If the plaintiff, the conductor of a freight train, by his own testimony shows that he received such injury by a car wheel running over his hand, by reason of a fall from a defective car stirrup, in attempting to get off his train while it was going at the rate of four or five miles an hour, in the middle of the night, with a lantern on his left arm, and his left hand partially disabled, at a station where he was required to register the time of passage of his train; and that the rules of the company did not require him to get off while the train was in motion, but authorized him to cause the engineer . to bring the train to a stand-still, such testimony raises a presumption of negligence on his part, and the burden is upon him to rebut such presumption, and the court should so instruct the jury, if attention is called to the matter at any time before the jury retires.

3. Jurisdiction oe Ohio Court Where Contract oe Service and Injury Occur in Another State.

Where an action for personal injury, resulting from a defect in appliances or machinery, against a railroad company operating by lease or otherwise a line of railroad partly within the state of Ohio and partly within the state of-Pennsylvania, and where it appears that the plaintiff’s contract of employment with the railroad company was made in the state of Pennsylvania, and his services under that contract were to be and were actually performed on said road wholly within the limits of the .state of Pennsylvania, and that Said accident occurred within said state, whether the second section of the statute of Ohio, volume 87, page 149, relating to the presumption of knowledge and of negligence in such cases, applies when it would change the legal effect of such contract under the law of the state of Pennsylvania, *queery ?*

*3674. Excessive Verdict.

Wliere tlie plaintiff, a freiglit conductor, lias Bis left hand crushed in an accident necessitating first, the amputation of three fingers, and afterwards, the amputation of the balance of the hand at the wrist, and where it appears that prior to the- accident one of the bones of the plaintiffs left hand had been broken in the palm of the hand which had resulted in at least one and probably two fingers of that hand becoming stiffened and withered, but which prior accident did not incapacitate him from performing his duties as freight conductor: *Held,*That a verdict of eight thousand ('$8,000.00) dollars was excessive, but the plaintiff below having voluntarily entered a sufficient *remittitur,*that error is cured.

†

Reversed by Supreme Court, authority of 26 O. S., 241, and 35 O. S., 627. 55 O. S., 689.

I/AUBIE, T.

In tbis case tbe railroad company seeks to reverse a judgment rendered against it in favor of Blair for $8,000, for an injury to bis band.

Counsel for tbe plaintiff relied very strongly upon what is claimed to bave been an erroneous bolding on tbe part of tbe court below in tbe admission of evidence of tbe second amputation of tbe band. It seems tbat at tbe time of tbe filing of tbe petition tbe plaintiff bad, by reason of tbis accident, certain fingers of tbe band amputated, and leaving tbe thumb and index finger of tbe band still upon it. But 'before tbe trial, under tbe advice of bis physicians, be was compelled to suffer an amputation of tbe whole band, or of tbe remaining part of tbe band, at tbe wrist. It was alleged in tbe petition, that three fingers of tbe band bad to be and were amputated by reason of tbe injury, and objection was made to testimony as to tbe second amputation on the ground that it was not alleged in tbe petition, and tbat defendant bad no notice of it, and was not prepared to meet it. But we think tbe objection was not well taken. The plaintiff might bave proved by medical testimony upon tbe trial, a permanent injury being alleged, tbat it would be necessary thereafter to amputate tbe band; and if be might do tbat, certainly be would be entitled to show tbat it bad been in fact amputated since tbe filing of tbe petition, without setting it out in a supplemental petition.

It is claimed tbat the court below erred in instructing tbe jury tbat it might take into consideration the ordinary method amongst railroad conductors of getting off trains at registering points, in order to ascertain whether or not, the plaintiff was injured by bis own negligence. He was a conductor of a freight train, and by reason of a defective step fell, and tbe wheels of tbe car ran over bis band, in tbe night when tbe train was in motion, at a station where he was required by tbe rules of tbe company to register tbe .time of its arrival and departure from tbat place. And he testified tbat it was customary for railroad conductors in performing tbis duty to get off while tbe train was in motion; and subsequently, on cross-examination, be testified that be bad seen others get off moving trains for tbe purpose named. There was no objection taken to tbis testimony; it was gone into voluntarily apparently by both parties, and no objection of any character was made to it until after tbe court’s charge, and the counsel for tbe defendant below excepted to tbe court permitting tbe jury to consider it.

Now while it is true tbat tbe court might bave properly refused • to submit tbe matter to the jury, yet where the evidence went in without objection, so tbat it was before tbe jury, it was not error for tbe court to permit tbe jury to consider it. If there bad been objection taken to tbe testimony so as to bave raised tbe point at tbe threshold, and made it where and when it should have been made, a different proposition would be presented. Tbis court,has heretofore declared tbat such testimony is> *368incompetent, and cannot be introduced for the purpose of excusing negligence on the part of the plaintiff, because if it is a negligent act, no amount of custom can make it otherwise. But as there was no objection whatever made to the testimony, the court might, in its discretion, submit it to the consideration of the jury.

Exception was taken to the charge in regard to the knowlege of the defect by the company. The claimed cause of the injury by the plaintiff Was negligence of the company, in permitting to be upon one of its cats a defective stirrup or step, upon the end of the car, for the use of the employees of the company in getting on and'off the train: and it became an important question in the case whether the defendant company had knowledge of this defect or not. The accident occurred the 4th of September, 1894, and consequently after the act of April 2, 1890, 87 <D. E. 149, was passed. The second section of this act provides : “It shall be unlawful for any corporation to knowingly and negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any way defective. If the employee of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachments thereto belonging, owned and operated, or being run and operated by such corporation, such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is sustained, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state; brought by such employee, or his legal representatives, against any railroad corporation for damages, on account •of such injuries so received, the same shall be *prima facie*evidence of negligence on the part of such corporation.” The words “such corporation,” as used in this section, refer to the corporations of the kind and character named in the first section of the act. That is, corporations owning and operating, or operating, or that may hereafter own or operate a railroad in whole or in part in this state. This case having been not only tried, but the accident itself having occurred long after the passage of this act, if the facts were of a character necessary to bring it within the statute, it would be subject to its provisions, and would be required to be tried with that in view. The case, however, in fact, was.not tried below with reference to that statute, and no claim was made as against the defendant by virtue of its provisions, but the case was presented to and tried by the court, upon the common law liability of the defendant. But here counsel for the defendant in error raised the question of the applicabilty of this statute to the case, and we are therefore not permitted to overlook it; perhaps we would not in any event, as it is the general law of the state; but at all events we are not permitted to overlook it when it is raised by counsel in the case. Was plaintiff in error a corporation owning and operating, or operating, a railroad partly within and partly without this state at the time in question ? Of that there is no dispute. The pleadings concede it was, and that it is a corporation organized under the laws of this state as well as of the state of Pennsylvania. The service that Blair was performing at the time was performed in the state of Pennsylvania, and there is where he was injured.

He had been running as conductor on the branch road of the company between Pittsburgh and Charties station for six or eight months prior to this injury, and he was at the time of the injury on a return trip from Chartiers station to Pittsburgh; so that he was in the performancs *369of services entirely within the state of Pennsylvania. It does not appear, however, that the contract of service was made in the state of Penn- . sylvania. It appears from the record that the plaintiff had his residence in this city when he was originally hired by the company, and still resides here. That he was originally hired to work upon the road as conductor to run between Youngstown and some point in Pennsylvania on the line of the road, and so continued for several years ; but six or eight months before the accident he was assigned by the assistant train master of the ■company to this branch in Pennsylvania, to take charge as he said of the double (BB) caboose. It does not appear by the record where the assistant train master’s office was, nor where he lived; all that appears, is that Blair was hired by the company, and was assigned to do business wherever his superiors chose to put him,'and for a few months before this injury was received he had been assigned to duty upon the branch road in Pennsylvania where he was injured. And as this corporation was running and operating a road partly within and partly without this state, and as the contract was not shown to have been made in Pennsylvania, the case is governed by the act referred to. If the contract had been made in the state of Pennsylvania, and to be wholly performed there, I thinkthisstatute,would not apply. In *McCann*v. *Pennsylvania*Company, 6 C. D., 610, there was, as in this case,' nothing to show that the contract was made in the state of Pennsylvania, and therefore this court held that the provisions of the act of April 2, 1890, supra, applied to the case, because in such case those provisions affected the remedy only. It would be different if the contract had been made and was to be performed wholly in Pennsylvania. A contract made in the state of Pennsylvania, for a service to be performed in that state, must be governed by the law of that state; and no other state, by reason of the provisions of the constitution of the United States, can be permitted to violate it or change its legal effect as declared by the laws of the state of Pennsylvania. So that if the contract had been made in the state of Pennsylvania, to be performed there, then the effect of this statute would be to create a cause of action in this state in favor of the employee which he would not have in the state of Pennsylvania; because, as shown by this record, in the state of Pennsylvania, inspectors and conductors are fellow-servants, and if the accident was caused, as claimed both here and in the McCann case, by the inspector’s negligence, plaintiff (a conductor) could not recover. And this statute, which applies solely to the remedy, cannot either directly or indirectly make that a cause of action here which was not such in the state .of Pennsylvania. But this question does not arise in this case, as it does not appear that this contract was made in the state of Pennsylvania. This consideration also applies to the exception taken to the charge of the court in submitting whether or not the defendant had a corps of competent inspectors whose duty it was to inspect this car.

It is claimed that there was no question in the case of the competency of the inspector, because no such claim was made in the petition, and that the sole allegation in the petition in this regard was that the company had no inspector at all at Jacob’s Run to inspect the car. But the§e matters all disappear by reason of the force and effect of the statute referred to, which makes a prima facie case, and throws the burden of proof upon the defendant where the accident occurred through a defective piece of machinery or appliance, when the defect is shown to have existed which caused the injury.

*370In answer, however, among other things, alleged that the defendant company had a competent corps of careful inspectors along its line, whose duty it was to carefully inspect cars substantially at every station upon its line, and who regularly and carefully performed that duty; that in the state of Pennsylvania the plaintiff and such inspectors were fellow-servants, for whose negligence no recovery could be had by the plaintiff; that it had discharged its duty to the plaintiff, and if he was injured by reason of the negligence of such inspectors in failing to discover and remedy such defective step, the plaintiff could not recover of defendant therefor. In *Railroad Company*v. *Erick,*51 Ohio St., 146, the same answer was made substantially, and the court held that it was no defense under the statute referred to, and that the company could only relieve itself from the imputation of negligence by showing that actual, careful and proper inspection had been made of the car in'question, and no such defect found. These matters, therefore, all passed out of this case by virtue of the provisions of the statute in question. Whether there had been an actual inspection of the car was properly left to the jury under further issues in the case.

The next proposition that is made is as to the burden of proof upon the question of contributory negligence. The court charged that the burden of proof of contributory negligence was upon the defendant, unless the testimony on part of the plaintiff raised a presumption of contributory negligence on his part, and if the jury found that it did, then the burden of proof would rest upon the plaintiff to rebut and remove this presumption, and produce a preponderance of evidence that contributory negligence upon his part did not exist. Counsel for the company excepted to this, and insisted that the court should have instructed the jury that the burden of proof on this point was upon the plaintiff, and a majority of this court think that should have been done, Undoubtedly, in this state the practice is to submit the question to the jury, and allow them to determine upon which party the burden rests; but this court has heretofore held that the rule was intended to, and does, apply only to cases where the question is doubtful under the evidence. As I have had occasion to say heretofore in regard to this rule, it is an unfortunate one at best. It seems as if it grew out of an attempt to shove responsibility from the shoulders of the court to those of the jury, and at the expense of the parties litigant. I think a party should have the right to have the court say upon whom the burden of proof should rest, whether upon the plaintiff or upon the defendant, and to take exception to it if it is against him. This rule places the court in the undignified position that when the counsel asks the court to say upon whom the burden rests, the court has to respond *“*Oh, I don’t know, you will have to ask the jury.” And ffhis in regard to a legal proposition, and not a question of fact.

If the facts are such that it is doubtful whether or not the plaintiff’s testimony raises such a presumption, this rule applies, and the question must go to the jury, the court not being permitted then to determine it; but if the presumption is not doubtful, if the facts are such that there can be no reasonable presumption but that of negligence, then the rule does not apply in our estimation, and it is then a question of law only to be determined by the court.

Now, how is it in this case ? Blair was conductor of this train with the authority to stop it by signal to the engineer, in the performance .of his duties whenever he saw fit, and at the point where he got off the *371train at West Newton, to go to the office to register, he was authorized by the rules of the company to stop the train, and was- not required to get off while the train was in motion. He was not required to expose himself to injury in that form, but was authorized to bring the train to a Standstill in order to allow him -to get off in safety, to go to the office and register. Instead of doing this, and taking what would have been a reasonably safe course for him, in the middle of the night, in the dark, with a lantern upon his left arm, and his left hand partially useless, he undertook to get off while the train was going as he says himself, four or five miles an hour. He did not even use his lantern to light the way. Instead of holding it down so he could see what was below him, whether everything was in order below him, and where he was going to step to, he had it upon his arm.

He claims he was injured because the stirrup or step of the car was loose at one side; the nut was off the bolt, and when he put his weight upon the step, it gave way and threw him down, and the train ran over a part of his hand. Beyond any question, he could not have suffered such an injury if he had performed his duty in the way the company had authorized him to do it — to stop his train, bring it to a standstill, before he attempted to get off. Now, I do not say that this was negligence *per se,*that it was such negligence as would absolutely bar a recovery, but I do say that the only reasonable presumption that could be drawn from this state of facts is that of negligence; that it would be intolerable to permit a jury to say that to attempt to get off a moving train in • th'e dark in that manner and under those circumstances, did not raise a presumption of negligence.

Concede that the case should go to the jury to determine whether it was such negligence as would bar a recovery; but that the facts as told by himself raised a presumption of negligence against the -plaintiff, I think is beyond dispute.

The opinion expressed in *Grant*v. *Railway Co.,*6 C. D., 516 as to the safety of such an act, had reference entirely to the evidence the court was then called upon to review as it had been presented by the plaintiff, and by way of comparison to getting off in front of a locomotive ; and is not to be understood as holding that such an act is in fact' a safe one or free from negligence. It is perhaps generally held that it is not negligence *per se*to get off a moving train, while it is moving slowly; but many courts hold that it is negligence *per se,*and bars recovery. This case itself illustrates the danger of getting off a moving train, in that the plaintiff in doing so was injured and run over; and in such a case, that a jury may be permitted to hold that the burden of proof of contributory negligence is on the defendant, because the evidence does not even raise a presumption of negligence against the plaintiff would be unjust.

In his passage from the top of the car to the ground. Blair had many things to contend against. Accidents of this character will occur from various causes. One man is injured" because the hand hold is defective or broken, or gone. Another is injured because the stirrup is defective. Another, because when he steps down on to the ground, he steps on a pebble or in a small hole, and his foot turns and he is thrown under the train. ■There are a hundred different ways wherein in attempting to get off a moving train, and especially in the night, an injury may occur to the party, and where ordinary care and caution for his own safety would require that he should, if he had the power to do it, stop the train, bring *372it to a standstill, so lie might alight in safety; and beyond all question the burden o£ proof should rest upon him who voluntarily and unnecessarily runs such a risk; and giving the jury the right to find otherwise is' in violation of the rule as heretofore laid down by this court, and which this court intends to follow until the supreme court holds that it is wrong. In the opinion of a majority of this court, the court below erred in submitting this proposition to the jury, instead of instructing them that the burden of proof as to contributory negligence rested upon the plaintiff. There was no necessity of the court telling the jury why, that it was because the plaintiff’s evidence raised a presumption of negligence on his part so as to prejudice his case by the expression of such opinion. All the court had to do was to instruct them that the burden of disproving contributory negligence rested upon the plaintiff; and for not doing so this case will have to be reversed.

*James P. Wilson*and A. *D. Jackson,*for Plaintiff in Frror.

*W. S. Anderson*and *R. B. Murray,*for Defendant in Frror.

There is still another question; that is as to the amount of the verdict or damages. The jury awarded to the plaintiff the sum of $8,000. It seems that his hand had been injured before, and that for a year he had but partial use of that hand. The bones of one if not two of the middle fingers had been broken just above the knuckle joint and he could not shut the hand tight, and the other fingers were withered somewhat. For the loss of this imperfect left hand, the jury awarded him the sum of $8,000, and we all think that this was excessive, and could have been given by the jury only through prejudice or passion. But this matter has been arranged and a *remittitur*agreed upon, so that the question as to the charge may be the sole question presented to the supreme court for revision, and the case is reversed, therefore, solely on that one ground.

Burrows, J., dissents from the first proposition of paragraph 2, of the syllabus.