Hocking Valley Ry. Co. v. Kontner , 1925 Ohio Misc. LEXIS 1265 ( 1925 )

ALLREAD, J.

Bert Kontner' brought an action in the-Franklin Common Pleas against the Hocking Valley Railway Co. for'sérious injuries'he received while in the employ of the Company, said injuries' being due to thé nfegligence ‘of another employe of the company. It seems that Kontner, an engineer rammed into the rear of a' státiónary train. '" He -claimed- that the flagman of the stationary train was negligent in not evidencing the presence of the train at the watering station by proper signals or torpedoes-"‘placed on-the track- to' warn-an-on-" coming train of the danger,- as provided by the rules of the company.- Kontner Recovered a judgment and veRdiet for" $4750 in the trial court. " .

Error was prosecuted and the company contend that Kontner’s negligence was the sole cause of the collision. The .contention was-based on á rule of the company’s providing that: “Engineers of: trains following other-' trains must approach water stations with proper care, with thé train under - such con-tral as will .prevent collision.’’ Kontnér con- • tended that - one, Brenner, who -was flagmen of the stationary train and .'who . should have performed his duty , by signalling his (Kont-ner’s) train, was sleeping. The negligence of Brenner- was therefore the. negligence of the company. The Court of Appeals held:

1. Under the: Federal Employer’s Liability Act, the defenses of the negligence of fellow servants and contributory negligence are abolished; the latter being-allowed only in reduction of the amount claimed.

2. The- negligence of. Brenner under' the Federal Employers’ Liability Act was the neg;. ligence of the company, and supported one of ;the charges qf negligence.under Kontner’s petition. ^ , .. . • . ; -, -

, 3. Question of,- Kontner’s. negligence as well las the.assumption,¡of -.ri.sk ¡were question* prop- .. ;erly sumbitted to the jury., ,.

4. Kontner had not assumed any obligation-which would" relieve Brenner from his duty. Kontner had a right to claim the benefit of the duty imposed upon Brenner “to protect '.the rear end of his train. Finding no ‘ prejudicial error; the judgment is affirmed.

Attorneys—Wilson & Rector & F.. C. Amos, for Company; Newcomb, Newcomb & Nord, and Pugh for Kontner; all of Columbus.