Lima Railway Co. v. Little (67 Ohio St. 91, 1902)

Grew, J..

By the record in this case, but two questions are presented to this Court for determination, and these are: 1. Did the trial court err in refusing to give to the jury the special instruction requested by plaintiff in error? 2. Was the charge- as given by the court erroneous?

The only evidence adduced at the trial of this case in the court of common pleas was that offered on behalf of the plaintiff, and the whole of the evidence so offered is set out in a bill of exceptions that is made a part of the record in this case. There was little or no conflict in the testimony of the several witnesses, and the testimony offered tended to prove, if it did not establish the fact, that after the east-bound Market street car had reached the transfer station in the public square, and before Mrs. Little attempted to get. aboard of said car, there had been a change of conductors and motormen, and that at the time of the accident — at the time Mrs. Little was injured — that John McGuff was then the conductor on, and was in charge of, said east-bound Market street car No. 3G, and that Isaac Smalley was then motorman on said car.

John McGuff testified as follows: “Q. Whose duty was it, or who had charge of the car from the’ time it arrived at the station? . A. When it arrived there I was supposed to have charge of it — to take it there. Q._ You? A. Yes, sir. Q. You had taken your place, had you? A. Yes, sir. Q. You were, as you supposed, all ready to move out for the east? A. Yes, sir. Q. Your motorman was in his place? A. Yes, sir. Q. How long had you been in your place or had the car been standing there before you took your position? A. About a minute and a half. Q. And you had been in your place for this time? A. Yes, sir. Q. You had taken your, place and your motorman had taken his? A. Yes, sir. Q. And that car was in your charge with Smalley- as the motorman of that car? A. Yes, sir.”

Isaac Smalley on his examination in chief testified as follows: “Q. Where do you live? A. 1015 Hughes Avenue. Q. What was your business or employment in the month of October, 1899? A. I was a motorman on the Lima street railway. Q. On the evening of October 31st, were you in charge of any car as a motorman? A. Yes, sir. Q. What was. the number of that car? A. Car 36. Q. Which way was it headed? A. It was going east on Market street. Q. Where did you take charge of that car? A. At the transfer station. Q. Here in the public square? A. Yes, sir. Q. State, if you know, where is the usual place that passengers transfer from Main street to Market street? A. At the transfer station. Q. Do you know how long that car had stood there or did stand there before it moved out? A. Well, not over two minutes, I don’t think; of course I didn’t time it; I could not say positively, but I don’t think over two minutes. Q. You took charge of it at that place? A. Yes, sir. Q. Who was your conductor that went on duty with you? A. John McGuff.” And on his cross-examination as follows: * * * “Q. You had not been on the car coming down Market street? A. No, sir. Q. You changed crews, I believe, at the transfer station? A. Yes, sir. Q. Your crew consisted of yourself and McGuff? A. Yes, sir. Q. What crew had brougbt the car to the transfer station? A. Why motorman O’Malley and conductor Cordrey. Q. You had relieved O’Malley? A. Yes, sir. Q. And McGuff had relieved Cordrey? A. I supposed he had, of course I did not know. Q. That is the point that McGuff takes Cordrey’s place? A. Yes, sir, and I supposed he relieved him, he was in charge of the car; of course he was supposed to relieve him but I did not know whether he had relieved him or not. Q. Cordrey lives somewhere in the eastern part of the town?' A. He gets off at Scott street, there at the hospital, I do not know where he lives, whether he lives on that street or not, but he got off there and went up that street. Q. This was the regular time for the transfer of crews? A. Yes, sir.”

At the conclusion of the testimony and after the arguments the railway company by its counsel requested the court to give to the jury the following instruction : “If at the time plaintiff undertook to