Vignola v. New York Central Railroad

Citations

• 102 Ohio St. (N.S.) 194

Syllabus

<p>Negligence — Master and servant — Scope of employment and unlawful act — Boarding railroad car without permission — Section 12543, General Code — Employe obeys orders of superior— Presumptions — Superior acting upon lawful authority — Questions of law and fact — Duty of court and jury — Evidence.</p> <p>1. Where an employe of a railroad company in obedience to the order of his superior, acting in the scope of his authority, climbed on a moving car in company with the superior while going from one point in the company’s yard to another in the prosecution of its business, it is no defense for the company, in an action of negligence by the employe for damages from injuries received while on the car, that the employe had climbed upon it in violation of Section 12543, General Code.</p> <p>2. In such case the employe in the absence of actual knowledge to the contrary had a right to presume that the foreman in climbing on the car and in ordering him to do so was acting by “permission under the lawful rules and regulations of the corporation managing such railroad,” as provided by the section referred to.</p> <p>3. In order that an issue should be required to be submitted to the jury, it is not essential that there be such a conflict in the testimony of different witnesses as makes it necessary for the jury to determine disputes or questions of veracity. That is not the only province of the jury. Where there is no conflict in the testimony, but nevertheless the unconflicting testimony discloses a variety of circumstances from which different minds may reasonably arrive at different conclusions as to the ultimate facts shown by the evidence, it is the duty of the jury to determine such ultimate fact. When the decisive ultimate fact is undisputed, there is presented simply a question of law.</p>