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

Citations

• 20 Ohio C.C. Dec. 67

Syllabus

<p>CUSTOM AND USAGE — EVIDENCE—MASTER AND SERVANT —NEGLIGENCE.</p> <p>Haynes, Parker and Taggart, JJ.</p> <p>(Judge Taggart of the fifth circuit, sitting in place of Judge Wildman.)'</p> <p>1. Evidence or Custom oe Giving Signals Admissible.</p> <p>Evidence that it was the custom of a railway conductor to give warning to the train men assisting him in the making up of a train in the yards, is admissible upon the. question whether, knowing the custom, the conductor exercised ordinary care, and also upon the question of whether the deceased, being aware of the custom and of the habit of the conductor, was guilty of contributory negligence.</p> <p>[For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 689-693. — Ed.]</p> <p>2. Brakeman Has Right to Rely on Signals of Conductor.</p> <p>Tlie yard brakeman of a railroad company, in the pursuance of his duty, in making up a train in the yards of the company, it being desired to reverse the location of the cars on the track, and it being necessary in so doing to pass between the cars to couple them up, has a right to expect that the cars will not be moved without a warning to him from the conductor, where it has been the habit or custom of the conductor to keep track of the trainmen assisting him.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Custom & Usage,” §§ 106-112.— Ed.]</p> <p>3. Charge to Jury as to What Constitutes a Custom.</p> <p>Where the court in its charge to the jury refers to a habit as a custom, evidently meaning a custom in the general acceptation of the term, and not a custom having the force of law, it devolves upon plaintiff in error before he can be heard to complain thereof to frame a charge that would correct the alleged error, as a general exception to the charge, is not sufficient for that purpose.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Charge to Jury,” §§ 382-408; §§ 619-657. — Ed.]</p> <p>4. Nonprejudicial Error in Court’s Charge.</p> <p>Where rules of a railroad