OPINION
By LIEGHLEY, PJ.On April 1, 1932, the defendant spotted a freight car loaded with ties, weighing about twenty-six tons, on the sidetrack or spur of The Pearl Road Lumber Company. This spur track had a grade toward the main track of a little more than. one percent. The conductor says that he set the hand brake on the car and that he blocked one end and the brakeman blocked the other end of the car each with a piece of 2x4 under the wheels.
This car stood in this position until the morning of April 4, 1932, when the decedent, Bauman, Anton his partner and two helpers, approached the car, broke the seal and the helpers entered with the intention of throwing out the railroad ties. Immediately upon beginning the work it was discovered that they had not brought with them tie-tongs to aid in unloading. The decedent left to obtain tie-tongs and returned in a few minutes and handed the tongs to the helpers inside the car with the statement that when they wanted to move the car they knew what to do. He thereupon started to walk away toward the down-grade end of the car and within a few moments the car began to move. The two helpers jumped from the car and one ran up the ladder to the top of the car and to the other end, set the brake and stopped the car. He testified that it required four or five turns to do so. Thereupon the body of Bauman was discovered about fifteen feet from the end of the car with Iris body outside of the rail and his, head inside, all but severad from his body.
Suit was instituted by plaintiff to recover damages for wrongful death. The trial resulted in a verdict and judgment for plaintiff. Appeal was taken to this court to reverse said judgment on questions of law.
When Bauman and his companions approached said car they had a right to assume that the defendant had discharged its duty to securely spot this car and from the evidence it may be concluded that they proceeded upon that assumption. Unless there was some apparent condition present to indicate the contrary, they were not bound to anticipate that some vicious stranger had interfered and molested the car.
The plaintiff cited and relies upon the case of Railroad v Rupp, 27 C. C. 212; affirmed by the Supreme Court in 73 Oh St 405. The second paragraph of the syllabus reads as follows:
“2. The jury is warranted in finding that the brakes on a freight car had not been *191properly set, or became loosed through the fault of the company, where the evidence shows that while the car was being unloaded on a siding it started down the track, and there is no evidence to show that the brakes had been tampered with either before or after the consignee’s employes started to unload the car.”
The trial court adopted and applied the rule of this case. This case was affirmed by the Supreme Court at a time when its jurisdiction was not limited to constitutional questions and questions of general and great public interest.
Inasmuch as this car was spotted on April 1st and not approached for unloading until the morning of April 4th, the defendant claims that the jury was permitted to indulge in speculation alone in arriving at its verdict. There is no evidence to explain the exact, manner in which the decedent met his death. It is a certainty that the sudden and unexpected moving of this car caught him unaware and killed him. There is no evidence that anyone meddled or tampered with this car during the three days. ' The defendant says that the verdict can only be justified by piling one inference upon another, contrary to law.
The conductor testified that he set the brake securely and that he and the brakeman blocked the car with two by fours. Anton testified that when he arrived there on the morning of April 4th the car was blocked with two by fours. No such timbers were found after the accident. Instead, there was offered in evidence two pieces of wood, one a board less than an inch in thickness and the other a thicker piece of wood in a state of disintegration, said to have been picked up there after the accident, one being on the rail. If the jury was bound to believe the conductor and the brakeman then the claim of defendant would be tenable. However, in the light of all the proof in the case, it may very well be that the jury did not believe their testimony and thought that they were mistaken in claiming that they did what they said they did to securely spot this car.
In the Rupp case a car was spotted on a spur track where it had stood perhaps several hours and perhaps a day and while a workman was in the process of unloading, the car started and rapidly ran down to and upon the main track and overturned. The workman jumped and was injured. Liability to the plaintiff in that case did not seem to be strenuously controverted, but it was sufficiently contra-verted to inspire the pronouncement of the rule found in the syllabus. It was made an issue also in that case as to whether the railroad company or the manufacturing concern was liable to plaintiff.
The jury in this case may well have concluded that some effort was made to securely spot this car but that it was not effectively done. True it stood there for almost three days but the jury may have decided that it was not so securely fastened that it would remain stationary in the event of activities incident to throwing the ties about and unloading the car.
As stated in the opinion at page 215, in the Rupp case:
“* * * and it would seem to be a fair and just conclusion in the case, and one at which the jury might properly arrive, that the brakes had in some manner become loosened, failed to hold, had not been properly set and failed to perform their duty; and that the car went down the track, without any negligence on the part of the tinware company or the man in the car.”
In view of the fact that there was no evidence to show that anyone meddled or tampered with this car while it stood on that spur track, it seems to us that it was clearly a question for the jury to decide. And in view of the conflicting proof and proof that is irreconcilable with the events of that day, it seems that the verdict of the jury should be sustained upon the apparent fact that the jury did not believe the conductor and the brakeman or believed that they were mistaken. If the jury had believed them, a different verdict .necessarily would have resulted.
Wherefore the judgment is affirmed.
Levine, J, concurs in judgment. Terrell, J, dissents.