Davis v. Breckler

Cushing, J. Arthur M. Breckler, a chemist, was • driving an automobile in Elmwood Place, on Janu — 20 — ary 28, 1920, and, in attempting to cross the tracks of the O., C., C. & St. L. Ry. Co., his automobile was struck by an express train of the company and he was killed. At the trial in the court of common pleas the jury returned a verdict in the sum of $15,000, and this proceeding is prosecuted to reverse the judgment entered on that verdict. The negligence charged against the railroad company was that the train was being operated at a high and excessive rate of speed; that no warning was given by the engineer, either by ringing the bell or sounding the whistle, giving notice of the approach of the train; that there were no gates or watchman at the crossing; and that the signal bell at that point did not ring. The defendant denied negligence as charged and pleaded that Breekler was guilty of negligence contributing to the accident in that he crossed the tracks of the railroad company without exercising ordinary care to ascertain whether or not a train was approaching. Elmwood avenue, from which Breekler approached the crossing, a short distance north of Oak street, was higher than the tracks of the railroad company. At its intersection with Oak street the street level was a little lower than the railroad crossing. Breekler turned his car to the right from Elmwood avenue into Oak street, and in making the turn was but a short distance from the railroad tracks. At that point there were three tracks, the east and west bound mains, and a siding west of the main tracks. Evidence was offered tending to establish that the signal bell did not ring, that there was no — 21 — watchman or gates at the crossing, that the train was running at a speed variously estimated from forty-five to seventy-five miles an hour, and that the train was late. There was testimony that the speed of the automobile varied from ten to fifteen miles an hour. Elmwood Place is a municipal corporation, separated from the city of Cincinnati only by the corporation line. The parts of Cincinnati north of the village and the village of Elmwood are populous communities. The facts and circumstances presented to the jury were that the train was operated through a populous part of Cincinnati and through the village of Elmwood at a very high rate of speed, that there were no gates at the crossing, that no watchman was stationed at that point, that the signal bell did not ring, that the automobile turned from Elmwood avenue into Oak street, and in crossing the tracks came into collision with the train, and that Breckler was killed. The question for the jury was whether or not the defendant was guilty of negligence in any of the particulars stated, or whether Breckler was guilty of contributory negligence, in failing to exercise ordinary care for his own safety. The jury returned a general verdict in favor of the plaintiff and against the defendant. The verdict is not manifestly against the weight of the evidence. Two other questions are presented by the record: 1. The refusal of the court to give special charges. 2. The failure of the court to submit three in — 22 — terrogatories, requested by tbe railroad company. Tbe court refused special charges Nos. 2, 3, 5, 7, 8 and 17. Special charge No. 2 assumes that the company’s trains were usually operated through this populous district at a high rate of speed, up to seventy or seventy-five miles an hour. No rule of law is cited authorizing a railroad company to so operate its trains for such length of time that the public is bound to take notice that trains are operated at that rate of speed. The charge in effect was that tbe jury should determine that such a rate of speed at that particular location was not evidence of negligence. This charge would have been misleading and was properly refused. Special charge No. 3, in the form in which it was stated, was properly refused. The rule is that persons are bound to exercise ordinary care for their own safety. Such care may vary with the circumstances of time and place, but it should be ordinary care under all the circumstances; not greater care. Special charge No. 5 is not applicable to the case at bar. The only obstruction to Breckler’s view of the west-bound track at the time he turned into Oak street, and before he reached the east-bound track, was some telegraph poles and a slight rise in Elmwood avenue north of the crossing. To charge the jury that he must stop before going on the track would be misleading. He was bound to use his senses in approaching and crossing the railroad tracks, in the exercise of ordinary care for his own safety. This rule is stated thus: “It is the duty of one about to drive across a railway track to look and listen for an approach — 23 — ing oar or train in such a manner as will make his looking and listening effective.” Ohio Traction Co. v. Smith, 15 C. C. (N. S.), 124. The same rule applies to special charge No. 7. It was Breckler’s duty to look and listen where his looking and listening would be effective. Charge No. 8 puts in issue the speed at which the automobile approached and started to cross the tracks, points out that the driver must look at a certain place, and assumes that the train was so near as to make it apparently dangerous. The speed of the automobile was not an element for the jury’s consideration. As framed, this charge was properly refused. Special charge No. 17 is so clearly erroneous that it will not be discussed. The law is that both plaintiff and defendant must exercise ordinary care under all the facts and circumstances of the particular case. It was a question for the jury to say which of the parties failed to exercise that care. Plaintiff in error requested the court to submit the following interrogatories to the jury: “1. Could the decedent, had he looked in the direction from which the train was approaching, or had he listened, immediately before driving onto the crossing, have seen or heard the train in time to have avoided being struck by the train? “2. Could the decedent, after he reached Oak street and made the turn into Oak street facing west, and before driving onto the railroad tracks, have seen or heard the approaching train, had he looked or listened? “3. If you answer question 2 in the affirmative, then state whether the approaching train was so — 24 — near the crossing as to make it apparently dangerous for decedent to attempt to cross at that time.” The rule is that interrogatories, the answers to which will establish ultimate and determinative facts, may be submitted to the jury, but not such as are only of a probative character. Schweinfurth, Admr., v. C., C., C. & St. L. Ry. Co., 60 Ohio St., 215, and Board of County Commrs. of Warren Co. v. Shurts, Admx., 10 Ohio App., 219, 225. In Cleveland & Elyria Electric Ry. Co. v. Hawkins, 64 Ohio St., 391, at 397, the court says: “Its object is to enable the court to determine as a matter of law whether the general verdict is right in view of the jury’s conclusions upon questions of fact, not to aid the court in determining whether the verdict is contrary to the weight of the evidence.” The interrogatories submitted in this case aroof the latter character, and were properly refused. The judgment of the court below will be affirmed. Judgment affirmed. Hamilton, P. J., and Buchwalter, J., concur.