Akron daily Democrat. [volume] (Akron, Ohio) 1892-1902, 1901-01-25
Supreme Court Judge Pays a Tribute
to His Memory.

Judge Davis. of the Ohio Supreme
Court, In his opinion in the case of
Gamble, admr. VS.. The A. T.. e. G.
K. II. company, pays Il tribute to the
herolsm of Justus II. Walborn, who
stuck to his post In vain attempt
to save the lives of the passengers.
The Circuit Court set the judgment
of the Common Pleas court, aside on
the ground that there was error in
the charge. Mr.. Walborn was acting
as motorman at the time of the ac-
cident. He was the conductor and
had relieved the regular man in order
to permit him to eat his dinner.
The full opinion of the Court fol-
lows:
1t is said that this is case in
which one ground of reversal may
have been that the judgment was
against the evidence; and that there
fore the Judgment of the Circuit court
should not be reviewed in this court.
Whatever the Circuit court might
have done, it is very clear that 1t did
not reverse the judgment of the Com.
mon Pleas on the weight of the evil
dence; for every one of the fourteen
findings of error relates to the charge
to the jury, or that which it is claimed
should have been given in charge to
the jury, in regard to the alleged vio>
lation of the rules Of the company.
1nasmuch as the Circuit court must
pass on all errors assigned, it must be
presumed that the court found no cr.
rors except those specified. Hence we
are not justified in assuming that
considerations of the weight Of the
evidence entered into the Judgment of
reversal.
We do not adopt the theory which
seems to have prevailed In the Circuit
court Rule 3, for conductors, merely
defines the regular position of the
conductor when not collecting fares.
1t does not prohibit him from tempo
rarily occupying any other position.
BY general rules and II, he has full
charge Of the car while in service; and
this implies that he may be anywhere
in the car while in the performance OF
duty In an emergency, such as, for
example, an accident to, or sudden
illness of, the motorman, he might be
in the yestibule in the place of the
motorman; and If competent to do so,
us it appears that Walborn was, might
act as mOtorman. So far as appears
here, there was no violation of either
the letter or the spirit of these rules
construed together, when NNalborn
temporarily exchanged places with the
motorman In order that the latter
might eat his dinner. 1t does not ap.
pear that the company's property, or
the safety Of passengers, was in any
way imperiled by this arrangement;
and there was no occasion to appre.
hend an emergency which would call
for them to be in their respective
places. 1t would seem that In this
! instance the conductor exercised his
judgment and authority, under the
rules, reasonably and prudently. The
case Is not therefore, akin to those
cases in which servant voluntarily
and needlessly, and not in the per,
formance of duty to the master, places
/ himself In position of greater peril
But If 1t be conceded that Walborn
was in n prohibited position at the
time he was fatally injured, it seems
to us that the same result must be
reached. The blunder of the train
dispatcher put everybody on the cal
in peril. His act was the sole and
proNimate cause of the collision. No
thing that Walborn did contributed
to bring about the collision; and he
herolcally died at his post in trying
to prevent it. Nothing is alleged
against him, except that he was in tn,
most dangerous position, where al
were in common danger, without tn,
fault of any. Under such circum
stances, it is nothing short of absurd
ity to contend that because he wal
killed instead of another, or possibl,
all, the company should escape al
liability for its wrong, But it il
argued that he should have deserted
his temporary post and have gon.
back to his proper position; In othe
words, that he was negligent in re
naming. But If he had run ava,
without attempting to reverse, ant
the other people'on the car had bee,
killed or mangled, would any cour
acquit the company Of negligence il
that respect? If the contention o
counsel is correct II involves the con
tradiction that Walborn was negligen
in remaining, and would have likewis,
been negligent If he ran away. VIII,
among us is sufficient for the decision
of such things In an emergency? w
are not willing to accept it as the Law
that motor engineer, or locomotiv
engineer, is guilty of contributor,
negligence merely because he remian
in his dangerous position aud contin
ues his efforts to avert calamity iron
the passengers behind him. And Wal
born was. for the time being tin
motor engineer Of that car. and as sucl
responsible for the safety of the pas
| sengers being carried therein.
We find no prejudlcial error In tn