Byrket v. Lake Shore & M. S. Ry.

Citations

• 19 Ohio C.C. Dec. 614

Syllabus

<p>MASTER AND SERVANT — RAILROADS.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Rights of Employe Using Tracks as a Convenient Pathway.</p> <p>Where an employe of a railroad, while off duty, is directed to report at a certain place as soon as possible, and in complying with said direction walks along the tracks of the company as a matter of convenience and time saving, he is not within the course of his employment while on the said tracks, and the engineer of an approaching train is not bound to keep a lookout for him.</p> <p>[For other cases in point,'see 6 Cyc. Dig., “Master and Servant,” §§ 292-411; 7 Cyc. Dig., “Railroads,” §§ 1058-1061. — Ed.]</p> <p>2. Duty of Person on Railroad Tracks to Observe and Avoid Danger.</p> <p>If such employe, while using the tracks of the company as 'a convenient pathway to his place of destination, by the proper use of his faculties of hearing and vision would have had warning of an approaching train, the presumption arises, when he does not discover such a train and is injured by being struck by it, that he did not exercise due care; and the burden is on him to remove that presumption. And where no reasonable inference can be drawn from the evidence relieving him from that presumption and no claim is asserted that the engineer or others controlling the movement of the train had actual knowledge of his. danger, it becomes the duty of the court to direct a verdict for the defendant.</p> <p>[For 'other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 293-335; 7 Cyc. Dig., “Railroads,” §§ 1080-1082. — Ed.]</p> <p>3. Duty of Railroad as to Persons on its Tracks.</p> <p>A railroad company owes no duty to an employe, or* other person, who is using its tracks merely as a convenient path of travel, to give notice by bell or whistle of an approaching train or to run at any particular rate of speed.</p> <p>[Syllabus approved by the court.]</p>