W. & L. E. R. v. Kilmbach , 1 Ohio Law. Abs. 488 ( 1923 )

KINKADE, J.:

Epitomized Opinion

Plaintiff brought an action to recover damages resulting from the wrongful death of Fred Kalmbach. Kalmbach was a car repairer in the employ of the Railroad Co. and was crushed between two cars which were shoved together by a switch engine when engaged in the operation of picking up and taking from a storage track to the general repair yard and repair shop a number of bad order cars which were stored temporarily on a storage track. The temporary storage track was about a mile or more from the general repair shop. The deceased had gone with the switching crew to these yards, and had proceeded along the track to a line of cars and was working with the couplings when the accident occurred. The switch crew had coupled on to one cut of cars and pushed them against the cut in which the deceased was w;orking|, The plaintiff introduced evidence showing a custom which required a switch crew to keep a vigilant look-out for the safety of the repair men and not to move the cars when the repair men were in a dangerous position in the performance of their duties. The Company claimed that the custom was that a repair man was always to give notice to the conductor before going into a dangerous position. The trial resulted in a verdict for the plaintiff in the sum of $20,000. The Railroad Co. prosecuted error. In sustaining tilt judgment of the lower court, the Court of Appeals held:

1. Although the court’s charge was erroneous in certain minor respects, the charge as a whole was not prejudicial to the Railroad Company.

2.' As the verdict was excessive, the amount of the same was reduced to $15,000.