Summary
In Reed v. Erie R. Co., 134 Ohio St. 31, 15 N.E.2d 637, it was said that a railroad is not negligent by reason of its failure to light its train or to give a signal of its presence on the crossing because "when the train has arrived and is in occupation of the crossing, it affords an effective danger signal to approaching travelers."
Summary of this case from Young v. R. ROpinion
No. 26991
Decided June 8, 1938.
Negligence — Railroad not liable for death of automobile passenger, when — Automobile driven against moving freight train occupying highway crossing — Railroad erected sign on one side of track — Section 8852, General Code.
A railroad company is not liable for the death of an automobile passenger occasioned when the automobile is driven against a moving freight train rightfully occupying its track at a highway crossing in the open country, where it appears that the company had erected a sign in literal compliance with Section 8852, General Code, that there were other effective signs denoting the presence of the crossing and that the automobile struck the forty-second car back of the locomotive.
CERTIFIED by the Court of Appeals of Union county.
This is an action for wrongful death, commenced in the Court of Common Pleas of Union county by the appellant, administrator of the estate of Leah Catherine Reed, against the appellee, the Erie Railroad Company.
On the night of February 27, 1935, appellant's decedent was riding as a passenger in an automobile which was driven against a car of appellee's freight train as it was passing over a grade crossing on State Route No. 31, several miles northwest of the city of Marysville, Ohio. The collision caused the death of appellant's decedent and the driver of the automobile.
Appellee was charged with negligence in the following respects:
1. Failure to erect and maintain a warning sign as required by Section 8852, General Code;
2. Failure to have any signal in operation at the crossing, with lights thereon;
3. Failure to have any crossing bells or gates in operation at the crossing, or any lights on the freight cars themselves, which would indicate the presence of a train on the crossing;
4. Failure to give notice by bell or whistle of the approach or presence of the train.
The case was tried to a jury, resulting in a disagreement. It was then submitted to the judge of another county, without the intervention of a jury, on the pleadings and a transcript of the evidence taken at the jury trial.
It was found by the court that the appellee had failed to erect a sign at the crossing, in compliance with Section 8852, General Code, and that such neglect was a proximate cause of the death of appellant's decedent. Damages were awarded in the sum of $2000.
An appeal on questions of law was taken to the Court of Appeals, which court, all three judges concurring, reversed the judgment below and rendered final judgment for the appellee on the basis that the train of cars on the crossing afforded ample notice of the proximity of the railroad track and the presence of the train; and the failure of the driver of the automobile to observe the train and stop his vehicle was the proximate cause of the death of appellant's decedent, the negligence, if any, of the appellee in failing to maintain a statutory sign or other signs or signals at the place mentioned not being a proximate cause of such death.
Finding its judgment in conflict with a judgment pronounced on the same question by the Court of Appeals of Lorain county in the case of Richter v. Wheeling Lake Erie Rd. Co., being cause No. 619 on the docket, the Court of Appeals of Union county certified its record to this court for review and final determination.
Additional facts are contained in the opinion.
Mr. Wilbur E. Benoy and Mr. Clifton L. Caryl, for appellant. Messrs. Foote, Bushnell, Burgess Chandler and Messrs. Guthery Guthery, for appellee.
Should the appellee be held legally responsible for the death of Leah Catherine Reed, upon the evidence adduced?
The following material facts are shown by the record:
Route 31 is a state highway, with a concrete surface, running in a general northerly and southerly direction. Some few miles northwest of the city of Marysville, Ohio, in the open country, it is intersected at an angle by a single track of the Erie Railroad, running in a general easterly and westerly direction.
On the night of February 27, 1935, at about ten o'clock, four persons, two young men and two high school girls, one of whom was appellant's decedent, were proceeding north from Marysville over State Route No. 31 in an automobile of the type known as a coupe, all occupying the same seat. One of the young men was driving and they were traveling at an estimated speed of from 30 to 35 miles per hour. It was a dark night but the lights on the automobile were burning brightly and the conveyance was in good mechanical condition.
According to the photographs, attached to the bill of exceptions as exhibits, the highway dips slightly to the south of the crossing, but is practically level for a considerable space just before reaching it. When the vehicle was on this level stretch, its occupants noticed a moving train. Brakes were applied, but the automobile struck the forty-second car back of the locomotive, resulting in the deaths of Miss Reed and the driver.
It appears that appellee had erected a wooden crossarm sign of the usual type on the west side of the highway to the north of the railroad track, which was not visible to travelers on the road coming from the south when a train was occupying the crossing. However, the Highway Department of the state of Ohio had denoted the existence of the track by painting two broad white stripes across the entire width of the highway, to the south of the crossing, between which stripes were the painted letters. "R. R." Nearby, on the east side of the road, was the familiar metal disc with its black cross and bearing the letters "R. R.," around which reflector buttons had been placed, outlining the letters.
The record suggests that all four of the young people involved resided in the general neighborhood and had previously passed the scene of their misadventure, more or less frequently, by automobile or bus.
There is nothing to indicate that the crossing in issue presented any features of unusual danger on the night of February 27, 1935. The impression is given of an ordinary country crossing, with an unobstructed view of appellee's track to the east and west. Under such circumstances, the appellee was not obliged to provide other means of warning than those prescribed by lawful authority. No legal duty rested on it to carry lights or reflectors on its cars, or to maintain lights, watchmen or gates at the crossing for the protection of travelers using the highway.
Appellant relies on Section 8852, General Code, reading as follows:
"At all points where its road crosses a public road, at a common grade, each company shall erect a sign, with large and distinct letters placed thereon, to give notice of the proximity of the railroad, and warn persons to be on the lookout for the locomotive. A company which neglects or refuses to comply with this provision shall be liable in damages for all injuries which occur to persons or property from such neglect or refusal."
It is conceded that appellee had erected a sign, as required by the statute, directly to the north of the crossing; but it is contended by appellant that the statute impliedly demands the erection of two signs, one on each side of the crossing, to effectuate the stated purpose.
When the language of this enactment is carefully considered such interpretation is at least questionable. "A sign" — not "two signs" — is the term employed. It must be such a sign as will be visible from both sides of the crossing "to give notice of the proximity of the railroad, and warn persons to be on the lookout for the locomotive." But when the train has arrived and is in occupation of the crossing, it affords an effective danger signal to approaching travelers.
Diligent search has not revealed any decision by this court presenting a combination of facts resembling those in the instant case. However, courts in other jurisdictions have been confronted with similar problems and in most instances have held that where a railroad train is rightfully occupying its track at a highway intersection, the presence of the train is adequate notice to a traveler that the crossing is preempted. Consequently, no additional signs, signals or warnings are required of the railroad company, and negligence cannot be imputed to it by reason of their absence. Dolan v. Bremmer, 220 Iowa 1143, 263 N.W. 798, is a case in point supporting this proposition, wherein a number of the leading cases dealing with the question are cited and discussed. Compare, Coleman v. Chicago, B. Q. Rd. Co., 287 Ill. App. 483, 5 N.E.2d 103; New York Central Rd. Co. v. Casey (Ind.Sup.), 14 N.E.2d 714, 716; Bowers v. Great Northern Ry. Co., 65 N.D. 384, 259 N.W. 99, 99 A. L. R., 1443, and annotation beginning at page 1454.
In our opinion, the record discloses no evidence upon which the appellee can be charged with actionable negligence. It was not guilty of any act or omission which can be denoted as a proximate cause of the death of appellant's decedent.
Having reached this conclusion, it becomes unnecessary to discuss the subject of negligence in relation to appellant's decedent or the driver of the automobile.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, DAY, WILLIAMS, MYERS and GORMAN, JJ., concur.