Opinion
Decided November 30, 1935.
Negligence — Interurban railway car struck motor truck which skidded and stalled on tracks — Evidence — Sufficient as to fact railway operated on private right of way — Railroad entitled to judgment non obstante veredicto, when — Charge to jury — Error to charge absolute duty on interurban — Prejudicial error to refuse charge on truck driver's duty of care — Contributory negligence — Request omitting proximate cause and opportunity to act properly refused — Proper to refuse charge that railway had right of way, when — Request stating railway need not consider objects off right of way erroneously refused — Request that interurban had rights of steam railway properly refused.
1. In an action arising out of a collision between a motor truck and an electric interurban car at a city street crossing, occurring when the truck skidded on the ice and stalled on the railway tracks, in which the trial judge stated that the defendant electric railway company operated on its own right of way at the place of the collision and not on a public highway, and photographs admitted in evidence substantiated this as did the defendant's articles of incorporation which were also offered in evidence, and the jury viewed the scene of the accident, it was not error to refuse further evidence of such fact offered by defendant, as the jury and the court were thoroughly informed of it.
2. In such case a general charge which in effect stated that the defendant must have its car under such control in approaching the crossing that there could be no possibility of a collision regardless of how negligent the plaintiff might be, is prejudicial error.
3. It is error in such case to refuse to give a requested charge that as a matter of law it was plaintiff's duty to look and listen for the approach of cars in a manner that would be effective to accomplish the ends designed.
4. A requested charge upon contributory negligence regarding plaintiff's duty to look for approaching cars after his truck stalled on the railway track, which omits the fact that such negligence must have been the proximate cause of the collision, was properly refused, especially so where no mention was made of the opportunity of time to think and act, as such factor must be taken into consideration.
5. A requested charge that as between the parties the electric car had the right of way was properly refused, as it was misleading under the circumstances and would have precluded recovery by plaintiff even though he had properly exercised his faculties of sight and hearing, and it also would have prevented application of the doctrine of "last clear chance."
6. It was prejudicial error to refuse a requested charge that as defendant had no control over buildings, trees, etc., not on its right of way, it was not required to take such things into consideration when approaching a crossing.
7. It was not error to refuse a requested charge after argument which stated that at the crossing in question defendant's rights were those of a steam railway as distinguished from those of a street railway, and were superior to the rights of the plaintiff.
8. The jury's finding on a special interrogatory that plaintiff lost control of his truck and stalled it on the railway tracks, along with evidence that he at no time while approaching the crossing exercised his faculties of sight and hearing for the purpose of ascertaining the approach of a car, entitles defendant to judgment non obstante veredicto, as plaintiff was guilty of negligence directly and proximately contributing to the collision.
ERROR: Court of Appeals for Mahoning county.
Mr. Osborne Mitchell and Mr. David C. Haynes, for plaintiff in error.
Mr. Morris Mendelssohn, for defendant in error.
This cause comes into this court on error from the Court of Common Pleas of Mahoning county, Ohio. The parties are in reverse order to that in which they appeared in the Common Pleas Court. The Youngstown Suburban Railway Company will be referred to herein as the defendant, and Jay Prigosin will be referred to herein as the plaintiff.
The plaintiff, Jay Prigosin, on the 28th day of December, 1933, about 1 o'clock in the afternoon, was operating a truck owned by the Public Market, Youngstown, Ohio. On that day he was delivering orders on the south side of the city, and had turned from Market street east on East Florida avenue. East Florida avenue runs in an easterly and westerly direction. Defendant operates an interurban electric railway. For some reason, best known to the trial court, the defendant was not permitted to give evidence as to whether or not it owns its own right-of-way, or whether it is operated over the public highways and streets of the city, or partly over one and partly over the other. When the defendant attempted to offer such evidence the court sustained an objection thereto and exception was noted by the defendant. But, we find, in the record, the following:
Court: "I think we are only concerned with the situation of Florida avenue. Florida avenue is a duly dedicated public street and includes in its dedication that part which is crossed by The Youngstown Suburban Railway. Isn't that a fact?"
Mr. Mitchell (Counsel for defendant): "That is a fact, but I would like to have it further stipulated that our private right-of-way extends south to the further terminus of the line, and as to that character of operation it seems to me it would be pertinent."
Court: "It doesn't make any difference. If this is a public street that, together with the ordinance and the charter will determine for the court what the rights of the respective parties are with reference to the use of that crossing."
Again in the record we find that the defendant offered Chapter 42, Section 652 of the Codified City Ordinances of the city of Youngstown, and in connection with this offer the court stated:
"Now that is not competent here, because it does not help us here. It excludes from the operation of that section the right-of-way of street cars. That does not help us any. A main thoroughfare, certainly that is not applicable here because there is no street on which electric cars run which crosses Florida. So this thing is of no value. There is no street upon which a street car runs which crosses Florida. That is not a street, that is a private right-of-way, so that there is not anything here that pertains to this situation."
Certain exhibits are offered by the plaintiff, consisting of photographs of the railway operated by the defendant. From these photographs, together with the above-quoted portion of the record, as well as from the articles of incorporation of the defendant company, which were admitted in evidence, it appears that defendant operates an interurban electric railway in and through the city of Youngstown to certain municipalities in Mahoning and Columbiana counties; that the tracks of the defendant company are located on its private right-of-way where the same crosses Florida avenue in the city of Youngstown, the tracks of defendant running in a northerly and southerly direction and crossing Florida avenue at right angles.
In view of the exhibits admitted in evidence, and the foregoing quoted statements of the trial court, we find that the refusal of the trial court to admit the evidence offered by the defendant below as to the fact that defendant's railway is operated on its private right-of-way where the same crosses Florida avenue was not prejudicial, as we think both court and jury were thoroughly informed of the fact that the tracks of the defendant at this point were located on its private right-of-way, and especially in view of the fact that the jury were taken to view the scene.
In his petition the plaintiff alleged that on the 28th day of December, 1933, at about 1 o'clock, p.m., "he was operating a truck in an easterly direction on said East Florida street and as he was approaching the said street car crossing he applied his brakes and the said truck skidded by reason of the street being icy and as the said truck skidded it traveled onto the said track of the said crossing and the motor stalled so that he was unable to proceed to cross the said street car track and that plaintiff was placed in a perilous position, which this defendant, operating its said street car by one of its agents and employes, * * * carelessly and negligently caused and permitted its said street car to be operated in a southerly direction over and along the aforesaid East Florida crossing at a high, dangerous and excessive rate of speed in the situation having regard for the amount and kind of traffic moving thereon and thereover and the general rules of traffic thereof, to-wit: about 40 miles per hour and at such a speed as to render him powerless to accomplish anything to avoid striking the automobile truck which this plaintiff was operating after he obtained sight of it and failed and neglected to apply the braking apparatus on said street car or to stop or slow down said street car for the better protection of the lives, limbs and property of those in the lawful use of said highway, including this plaintiff, and carelessly and negligently failed and neglected to keep a lookout ahead of said street car in the direction in which it was then and there proceeding, and failed and neglected to warn those in the lawful use of said highway, including this plaintiff, by bell, horn, whistle or other means of signal when he well knew or in the exercise of reasonable care on his part should have anticipated the presence of this said automobile truck which was then and there upon said crossing, as aforesaid; that the defendant company did not stop its said street car in time to avoid hitting said automobile truck when the motorman in charge of said street car saw the automobile truck on said street car crossing in a helpless and dangerous position, in time to stop said street car and avoid collision, and that said defendant had plenty of opportunity to have stopped said street car or to have slowed down said street car to avoid hitting said automobile truck, but failed and neglected to do so."
The defendant answered, admitting its corporate capacity, and that it owns and operates an electric street railway extending, in part, through a certain district in the city of Youngstown; that the railway crosses a street in the city, known as East Florida street, or avenue; admits that the street extends in a general easterly and westerly direction and that the defendant's railway intersects the same in a general northerly and southerly direction, by one track; admits that the section of the city lying immediately adjacent to the crossing is closely built up; admits that on the 28th day of December, 1933, at about 1 o'clock p.m. a collision took place between a truck operating in an easterly direction over Florida avenue and an electric passenger car of defendant, which was proceeding in a southerly direction across East Florida avenue at that time. The defendant denied that the collision took place at the time and in the manner set forth in plaintiff's petition; denied all of the allegations of negligence on its part alleged in the petition, and further answering the defendant says:
"That if upon trial of the case it shall appear that this answering defendant was in any respect negligent, such negligence being, as aforesaid, specifically denied herein, then it will also appear that the plaintiff himself was guilty of negligence directly and proximately contributing to and causing the accident described in the plaintiff's petition and the injuries suffered by the plaintiff therein, the said negligence of the plaintiff consisting in this: That the said plaintiff, being at said time and place an adult person in full possession of the normal senses of sight and hearing and, as the driver of a truck over a public highway being chargeable with full knowledge of the icy condition of said highway and of the proximity of a railway track to said highway, did fail to exercise his senses of sight and hearing for his own safety and did fail to exercise care and caution in approaching said railroad crossing; did fail to stop his truck before proceeding over said tracks, and to look and listen at said time and place; did fail to have his truck under full control, when approaching said track and to exercise the degree of caution required of a prudent man when operating a truck over a street covered with ice, at a point where the same crossed a railroad track; did fail to equip his said truck with chains, or other safety devices, at a time when the highways were covered with ice, and having so failed to provide chains, or safety devices, did operate his said truck at such a high and dangerous rate of speed as to cause the said plaintiff, on application of the brakes, to lose control of said truck thereby stalling his engine and rendering ineffective his traction power and causing the said truck to skid over the ice on said street and to be projected into the path of the car of this answering defendant which was then and there crossing said street in a lawful manner, in accordance with its regular schedule.
"Further answering, defendant says that it approached said crossing at a reasonable and lawful rate of speed; that its motorman had its car under full control at all times; that it gave the usual signals prior to crossing said street; that the said street was clear before this answering defendant's car entered upon the crossing of the same; that there were no automobiles in or about the street crossing and that the truck of the plaintiff traveling east at a high and dangerous rate of speed escaped as aforesaid from the control of said plaintiff and skidded into and upon this answering defendant's car in the manner hereinbefore described and that this answering defendant and its employees were without fault in respect to said collision, and were without opportunity of avoiding the same."
The plaintiff by his reply denied "each and every allegation, statement and averment in defendant's answer contained, which are not admissions of plaintiff's petition."
The jury returned a verdict in favor of the plaintiff and against the defendant in the sum of $3,000, and the jury answered, as follows, certain specific interrogatories propounded by the defendant, to wit:
(1) "Do you find that the plaintiff, Jay Prigosin, lost control of his truck and thereby stalled the same on the tracks of The Youngstown and Suburban Railway Company? Yes.
(2) "If your answer to No. 1 is `yes,' do you find that after his truck was stalled on the track, he attempted to start his engine and drive off of the tracks before looking to the right and left for an approaching car or train? Yes."
Motion was made by the defendant for judgment in its favor, notwithstanding the verdict, on the ground that the answers to the specific questions of fact propounded to the jury and answered by it are inconsistent with the verdict, and that in fact the jury found that the plaintiff, at the time of the accident, was contributorily negligent in that he failed to use his senses of sight and hearing for his own safety by remaining upon the tracks of defendant in the manner as set forth in interrogatory No. 2.
The motion for judgment non obstante veredicto was overruled by the court, and, motion for a new trial having been filed and overruled and judgment entered for the plaintiff, error was duly prosecuted to this court.
The following grounds of error are set forth in the petition in error:
"First: The said judgment is contrary to law and against the weight of the evidence.
"Second: The court erred in failing to charge the jury before argument in accordance with request numbered `third,' submitted by the plaintiff in error, as follows: `The court says to you as a matter of law that when a traveler upon a public highway approaching a grade crossing, intending to pass over, it is the duty of such traveler, before going upon the track, to look both ways and listen for the approach of cars, or trains; and such looking and listening must be at such time and place and in such manner as will be effective to accomplish the ends designed thereby.'
"Third: The court erred in failing to charge the jury before argument in accordance with request numbered `Fourth,' submitted by the plaintiff in error, as follows: `The court says to you as a matter of law that when an automobile stalls upon a railroad track, it is the duty of the driver to look both ways for approaching cars, or trains, and his failure to do so, if he did fail, is contributory negligence and the plaintiff cannot recover.'
"Fourth: The court erred in failing to charge the jury before argument in accordance with request numbered `Sixth,' submitted by the plaintiff in error, as follows: `The court says to you as a matter of law that as between a person about to cross over a railroad crossing and a car, or train, approaching such crossing, the car or train has the right-of-way.'
"Fifth: The court erred in failing to charge the jury before argument in accordance with request numbered `Seventh,' submitted by the plaintiff in error, as follows: `The court says to you as a matter of law that as a railroad company has no control over trees, weeds, brush, shrubbery and buildings, not on its right-of-way, it is not required to take such things into consideration on approaching a crossing.'
"Sixth: The court erred in failing to charge the jury before argument in accordance with request numbered `Tenth,' submitted by the plaintiff in error, as follows: `The court says to you as a matter of law that it was the duty of the plaintiff, if and when he found his automobile stalled upon the car tracks, immediately to ascertain whether an electric car, or train, was in proximity to the crossing, and failure to look and listen for such approaching car, or train, was contributory negligence, which will prevent a recovery.'
"Seventh: The court erred in failing to charge the jury after argument in accordance with the following request, submitted by the plaintiff in error: `After the court's general charge, the court is respectfully requested in writing to charge on behalf of the defendant railway company, that The Youngstown Suburban Railway Company is an interurban electric railroad company and that on and over the Florida avenue crossing its rights were those of a railroad company as distinguished from a street railway company, and were superior to the rights of the plaintiff in this case.'
"Eighth: The court erred in overruling the motion of the plaintiff in error for judgment upon the special findings of the jury.
"Ninth: The court erred in the admission of evidence over the objection of the plaintiff in error and to which exceptions were duly noted.
"Tenth: The court erred in excluding evidence offered on behalf of the plaintiff in error, duly excepted.
"Eleventh: The court erred in overruling the motion for a directed verdict made by plaintiff in error at the close of the testimony of the plaintiff below.
"Twelfth: The court erred in overruling the motion of the plaintiff in error to direct a verdict in its behalf at the close of all of the testimony.
"Thirteenth: The court erred in its general charge to the jury.
"Fourteenth: For other errors on the face of the record prejudicial to the rights of the plaintiff in error."
In the brief and oral argument for defendant no claim is made of error in the introduction of evidence by the plaintiff, and no further claim of error is made as to the exclusion of evidence offered on behalf of the defendant, except in the matter of the court's refusal to permit the introduction of evidence as to the fact that defendant operates its interurban electric railway on its own private right-of-way where the same crosses East Florida avenue in the city of Youngstown, and in excluding evidence that defendant operates its lines to various points in Mahoning and Columbiana counties. We find no prejudicial error in this respect for the reasons hereinbefore stated. The principal errors relied upon in brief and oral argument for defendant arise out of the divergent views of defendant's counsel and the trial court with relation to the rules of law applicable to the situation presented by the pleadings and the evidence in this case. Defendant maintains that its rights on the Florida avenue crossing were the same as those of a steam railroad; that the plaintiff was required to effectively look and listen before going upon the tracks of the defendant; that the plaintiff failed to so look and listen, and that such failure was the direct and proximate cause of the accident. The defendant further maintains that the court should have sustained the motions for a directed verdict and should further have sustained its motion for a judgment upon the special findings as inconsistent with the verdict actually rendered by the jury.
As opposed to these contentions of defendant the trial court charged the jury as follows:
"The rights of the plaintiff who was driving his truck on East Florida avenue, and of the defendant who operated its street car across East Florida avenue along that crossing where this accident occurred, were equal, mutual and reciprocal, except as the equality of rights may be affected by the fact that the street car could not turn off the track. This fact, however, does not alter the duty of the plaintiff nor enlarge the rights of the defendant, whose right in the street remained co-equal with the plaintiff. Both the plaintiff and the defendant were required, exercising this equal right, to exercise ordinary care to prevent collisions at that crossing. The one who can most readily adjust himself to the exigencies of a particular situation must do so when necessary to avoid injury at such crossing. The duty owing to keep a look out to avoid danger was just as fully imposed upon the one as upon the other, the only different right which the street car company had resting from the necessity of the car confining its travel to the track and the consequent inability to turn out to avoid an accident. It was the duty of the defendant, through its motorman, to exercise reasonable and ordinary care in the management, operation and control of its car as the circumstances required to avoid injury to another in a vehicle crossing its track at that point. It was the defendant's duty to exercise ordinary care in keeping a lookout for vehicles on the street and to have its car under such control as to be able on the shortest possible notice to decrease the speed of the car to avoid collision therewith, if ordinary care required him so to do. It was further its duty to exercise ordinary care as to the speed in which the car was being operated toward East Florida avenue crossing, and to give warning of its approach toward the crossing, such as ordinary care in the situation would require."
It seems apparent that this quoted portion of the charge of the court to the jury required of the defendant that it have its interurban car under such control as it approached and crossed East Florida avenue that there would be no possibility of a collision at the crossing regardless of how negligent the traveler upon East Florida avenue might be.
Passing for the time being the question whether or not the trial court should have sustained the motions made by defendant for a directed verdict, we consider the errors claimed by defendant in connection with certain requests to charge, submitted by it.
Assuming for the time, but not now deciding, that the motions for directed verdict were properly overruled, we find no error was committed by the court in refusing the fourth request to charge submitted by the defendant below. This charge omits the requirement that the contributory negligence of the plaintiff must be such as was a proximate cause of the collision and, under the circumstances shown in this case, would have been misleading to the jury in that it ignores the element of time and opportunity manifest in the emergency such as confronted the defendant in this case. The only evidence as to the conduct of the operator of the motor vehicle when his truck stopped on the street car track was that he put his foot on the gas, and then right away he put his foot on the starter to start the motor, and glanced right and left and saw the street car. In such emergency it was for the jury to say whether the plaintiff, at the time his truck stalled on the street car track, acted as an ordinarily prudent person would act under like circumstances. The opportunity to think and act must be taken into consideration, and since it is apparent that he was required to act suddenly and in an emergency without opportunity for deliberation, whether or not he was guilty of contributory negligence for his failure to first look in each direction for the street car before attempting to start his automobile is a question of fact for the jury under proper instructions. See 4 Ohio Jurisprudence, Automobiles, 640, Section 48.
In answer to the specific question of fact No. 2, propounded to the jury, the jury did find that the plaintiff attempted to start his engine and drive off of the tracks before looking to the right or left for an approaching car or train. But, by its general verdict, the jury must have found that plaintiff's failure in this emergency to look to the right and left before attempting to put on the gas and start the motor was not failure of the plaintiff to exercise ordinary care under the circumstances. In this we find no prejudicial error.
The sixth request to charge, submitted by the defendant below, was properly refused in that it would have been misleading to the jury under the facts and circumstances shown by the evidence in this case, and would have prevented recovery even though the plaintiff below had properly exercised his faculties of sight and hearing, and had seen that no electric car was approaching on the tracks when he attempted to cross the same. Undoubtedly the plaintiff had the right to use this street, and if his truck stalled upon the railway track without any fault or negligence upon his part, or even because of his negligence, and was there stalled on the track when the operator of the electric car saw him in such position of peril far enough away that he could, by the exercise of ordinary care, stop the car and prevent the collision, then under the last clear chance doctrine pled in the petition the plaintiff might have recovered.
The court made no charge to the jury upon the subject of the last clear chance, but, of course, since the verdict of the jury was in favor of the plaintiff, there was no prejudicial error in this respect; yet it was incumbent upon the court in determining whether to give to the jury the special instructions presented by the defendant below to give or not give the same in view of the facts pled and shown by the record.
In view of the final conclusion arrived at by this court, we find that the refusal of the trial court to give to the jury the seventh request to charge, submitted by the defendant below, was prejudicial error. The Baltimore Ohio Rd. Co. v. Kately, 12 Ohio App. 16; N.Y., C. St. L. Rd. Co. v. Kistler, 66 Ohio St. 326, 64 N.E. 130.
The refusal of the court to give the tenth request to charge, submitted by the defendant, was not error for the reasons assigned as to the refusal to give the fourth request, submitted by defendant.
There was no error in the refusal of the trial court to give to the jury the request submitted by defendant after argument. The request is too general in its nature and failed to define the care required of the plaintiff and the defendant under the circumstances shown in this case. We are not inclined to hold that the rights of a street railway company or a steam railroad company at a street or highway crossing are superior to the rights of one lawfully using the street or highway. Both are required to use ordinary care. That which each is required to do in the exercise of ordinary care differs because the interurban electric car and the steam railroad train operate on fixed tracks and, by reason of their greater weight, are less easily stopped or checked than an automobile.
The jury, by its answer to the interrogatory No. One propounded to it by the defendant below, found that the plaintiff lost control of his truck and thereby stalled the same on the tracks of the defendant. Did this finding entitle the defendant below to a verdict in its favor non obstante veredicto? We will consider this question together with the question whether the court erred in refusing to sustain the motions of defendant for directed verdict.
If the rule laid down by the Supreme Court of Ohio in certain of its early decisions, notably in the case of Steubenville Wheeling Traction Co. v. Brandon, Admr., 87 Ohio St. 187, 100 N.E. 325, as set forth in the syllabus, is the law applicable to the case at bar, the defendant was not entitled to a verdict non obstante veredicto, nor did the court err in overruling the motions for directed verdict, or in refusing to give the requested charge of defendant, numbered "third."
The court clearly holds in Steubenville Wheeling Traction Co. v. Brandon, Admr., supra, that:
"Omission by one about to drive a horse and wagon across a street railway track constructed and operated upon a public street in a much frequented part of a city, to look for the approach of a car is not, in all cases and as matter of law, negligence which will defeat a recovery for injuries received by such driver in a collision between the wagon and a car of the railway company, his duty being to exercise ordinary vigilance to avoid a collision, and whether he has exercised such vigilance or not depends upon the circumstances of each particular case."
In Steubenville Wheeling Traction Co. v. Brandon, supra, the street car was being operated upon the public highway and not upon its private right-of-way, and in this respect, at least, is distinguished from the case at bar wherein the street car was being operated upon the private right-of-way of the defendant. Undoubtedly it is and has been the law in this state, for many years, that one traveling upon a public highway and about to cross the tracks of a steam railroad must keep his automobile, truck, or other vehicle under control, so as to be able to stop the same before going upon a railroad track, if by the use of his senses of sight and hearing at such point as the use thereof will be effective he would discover the approach of a steam railroad train so close as to make it probable that the train can not be stopped in time to avoid a collision. This rule has been one of necessity because of the fact that the railroad train runs upon a fixed track and can not turn out, and by reason of its greater weight it is less easy to check its speed or to stop it than it is a smaller vehicle.
It is the claim of the defendant in this case that the same rule applies to the case at bar because the same conditions exist in that the defendant's electric car was being operated upon a fixed track whereby it was impossible to turn the same out, and by reason of its greater weight was less easy to check or stop than the smaller vehicle.
From the evidence in the case at bar, it is clear that the plaintiff below was familiar with the location of the street car track across the highway; had knowledge of the fact that street cars were frequently operated on said track over said crossing; that the street upon which plaintiff's truck was being driven was icy and slippery; that the highway approaching the street car track was down grade, and that the plaintiff was familiar with the operation of automobiles and knew of the likelihood of his truck skidding upon the icy highway. The plaintiff himself testifies that he applied his brakes "hard" at a point about twenty-five to thirty-five feet away from the street car track, and thereupon the truck skidded and he lost control thereof.
Beyond question the evidence discloses that the plaintiff did not look and listen for the approach of this street car at a point where such looking and listening would have been effective. Of course, if under the rule laid down in Steubenville Wheeling Traction Co. v. Brandon, supra, it was not negligence as a matter of law for him to fail to look and listen, then it was a question of fact for the jury to determine under all the facts and circumstances shown by the evidence as to whether or not the plaintiff acted as a reasonably prudent person would act under like circumstances.
The case of Cincinnati Street Ry. Co. v. Snell, 54 Ohio St. 197, 43 N.E. 207, 32 L.R.A., 276, was decided by the Supreme Court of Ohio about the time automobiles first came into use as a mode of travel and when the use of electricity was likewise considered a new motive power on street railways. That case did not arise out of a collision between an electric street car and an automobile, but was one where a pedestrian was injured at a street railway crossing, and where the injured person testified that he did look in both directions and listen for the street car, but where the circumstances showed that if he had actually looked to the east he would have seen the street car which struck him. The trial court directed a verdict in favor of the defendant, which was reversed by the Circuit Court, and the decision of the Circuit Court was affirmed. In the majority opinion of the court we read the following:
"It is insisted that, in the best view of the case for the plaintiff, the evidence shows that he did not look to the east; for while it may be that the verbal evidence tended to show that he did look in that direction, yet he could not have done so, for if he had he surely would have seen the coming car, and that, as matter of law, it is negligence for one about to cross a railway not to look each way. Authorities are to be found giving apparent support to this proposition. The practice in some courts is for the court to direct a verdict whenever, in the opinion of the judge, the evidence would not warrant a judgment. And some of these decisions imply that the court has held persons about to cross a street car track to the same degree of care as would be demanded were he crossing a steam railroad. We think there is no just analogy between the right of a street railway running cars along a highway and the right of a steam railroad running its trains across a highway at grade, and that the rule of care incumbent upon one about to cross a steam railroad is hardly a fair one to be applied in all its strictness to street railways in cities where a car that can be speedily stopped passes a crossing at frequent intervals, and where people necessarily cross the streets frequently and hurriedly."
Shauck and Burket, JJ., dissented from the majority opinion, and in the dissenting opinion written by Judge Shauck, and concurred in by Judge Burket, Judge Shauck defines the rule laid down by the Supreme Court of Ohio applicable to a situation where a person is about to cross the tracks of a steam railroad, by which it is made the imperative duty of "`a person in the full enjoyment of the faculties of seeing and hearing, before attempting to pass over a known railroad crossing, to [should] use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence, which will defeat an action by such person for an injury to which such negligence contributed.'"
Shauck, J., further states in his opinion: "Neither the authorities nor the reasons involved will permit a distinction between steam cars on the one hand and electric and cable cars on the other as to the application of this rule."
It is impossible to reconcile the various decisions of our courts upon this subject prior to the decision of the Supreme Court in the case of Columbus, Delaware Marion Electric Co. v. O'Day, Admx., 123 Ohio St. 638, 176 N.E. 569, wherein our Supreme Court seems to have finally determined that the same rules apply in the case of an electric interurban railway as in the case of a steam railroad.
The case of Columbus, Delaware Marion Electric Co. v. O'Day, Admx., supra, arose out of a collision between an automobile and an electric interurban car at a city street crossing. The facts set forth in the opinion do not disclose whether the street car was operating upon its private right-of-way, or whether its tracks were located in the public street. At the crossing in question the street car company maintained an automatic signal alarm which failed to operate as the automobile approached its railroad crossing. It can readily be seen that the facts make a much stronger case for plaintiff than in the case at bar. The syllabus, by the court, is as follows:
"Where an action for damages is instituted, arising out of the collision upon a highway of an automobile and an interurban car, and the jury in answer to certain interrogatories states that if the decedent, the driver of such automobile, had looked he would have seen the interurban car in time to stop his automobile in a place of safety, and also answers that the decedent did not look in the direction of the on-coming interurban car when he was far enough from the interurban railroad track to stop his automobile before reaching the crossing, it is reversible error for the trial court to overrule the defendant's motion for judgment upon the interrogatories.
"Where an automatic signal alarm, voluntarily instituted and operated by an interurban street railway company at a city street crossing, fails to operate as a traveler approaches such crossing, its failure to operate is not in the nature of an implied invitation to cross. The alarm constitutes a warning merely.
"The presence of an automatic signal alarm, voluntarily instituted and operated by an interurban railway company at a city street crossing, does not absolve a traveler upon the highway from the exercise of the care that a reasonably prudent person would exercise under all the circumstances. Such care upon the part of a driver of an automobile includes the obligation of exercising the faculties of sight and hearing, when such driver is far enough from the railway track to be able to stop his automobile before reaching the crossing."
It is observed that the Supreme Court in this later expression of the rule of care devolving upon one about to drive an automobile over a street railway crossing includes the obligation of exercising the faculties of sight and hearing when such driver is far enough from the railway track to be able to stop his automobile before reaching the crossing.
Not even the plaintiff himself, or any of his witnesses in the case at bar, testifies that he, at any time while approaching this crossing, exercised his faculties of sight and hearing before attempting to cross the railway track of the defendant. Instead the plaintiff below admits and testifies, and the jury finds, that plaintiff lost control of his automobile and skidded upon the street car tracks where he discovered that his automobile engine had stopped running.
Undoubtedly it is a matter of common knowledge that ice upon a highway, causing the same to be in a slippery condition as testified by the plaintiff, renders an automobile liable to become out of control and skid, and requires a greater degree of care upon the operator thereof under such circumstances.
In the case of Lynch, Admx., v. The Penna. Rd. Co., 48 Ohio App. 295, 194 N.E. 31, the court holds, in the syllabus, as follows:
"1. An operator of a motor vehicle approaching a railroad crossing, who failed to slacken his speed until within twenty-five feet thereof and was then unable to stop, due to the oiled condition of the street, as a result of which the car swerved and collided with the side of a locomotive crossing the street, the oil and the crossing being plainly visible for a considerable distance, is guilty of contributory negligence as a matter of law.
"2. The fact that such locomotive, under the circumstances, was traveling at an excessive rate of speed does not prevent the court from directing a verdict in favor of the railroad company for the reason that such excessive speed could not have been the proximate cause of the accident."
In the opinion of Lynch, Admx., v. The Penna. Rd. Co., supra, at page 297, the court says:
"It is today a matter of common knowledge that the presence of oil, such as is usually placed upon streets, makes them extremely slippery. It is very difficult to bring vehicles to a stop. They will skid and slide very easily. A condition of the street which is so obvious requires that a vehicle operated upon a street so oiled must be under perfect control. To drive an automobile up to a railroad crossing over which a locomotive or train may be caused to pass at any moment, at what would be a safe rate of speed when the street was dry, may be sheer madness when the street is covered with oil up to the crossing. It is clear that decedent made no effort to stop the automobile until within twenty-five feet of the crossing, and that he was then unable to stop, owing to the condition of the street.
"Certainly in the face of the evidence produced in this case the jury were not only warranted in bringing in a verdict for the defendants, but were required to do so by the evidence when the case was submitted to them." (Italics ours.)
If, as we are compelled to conclude from the opinion of the Supreme Court in Electric Co. v. O'Day, supra, the obligation of one about to pass over an interurban electric railway track is the same as the duty of one about to cross a steam railroad track in that he must exercise his faculties of sight and hearing when he is far enough from the railway track to be able to stop his automobile before reaching the crossing, then we must conclude that the plaintiff in the case at bar, being familiar with the location of the railway track and the operation of cars thereover, the grade of the street, the icy and slippery condition of the street, failing to exercise his faculties of sight and hearing when he was far enough from the railway track to be able to stop his automobile before reaching the crossing, and failing to keep his automobile under control, was guilty of negligence, which directly and proximately contributed to his injuries.
It is clear to us, from our examination of the record, that the collision was, at least, no more the result of the manner of operation of the street car than the manner of the operation of the automobile, and that the failure of the plaintiff to keep his automobile under control at the time and place, and under the circumstances shown by the record, and his failure to look and listen for the approach of the street car when he was far enough from the railway track to be able to stop his automobile before reaching the crossing, was a direct and proximate cause of the collision. So finding, it is manifest that the trial court erred, not only in its charge to the jury, in its failure to grant the motion for judgment non obstante veredicto, but likewise erred in overruling the motion of the defendant for a verdict in its favor at the conclusion of all the evidence, unless the plaintiff was entitled to recover in this case under the doctrine of the last clear chance pled in his petition. As stated above, the court failed to charge the jury upon the doctrine of the last clear chance, and it is our understanding that a verdict cannot be sustained under the two-issue rule unless at least one of the issues is presented to the jury under proper instructions of the court. In this case the trial court, at the conclusion of its general charge, inquired of counsel for both parties if there were any errors, omissions or suggestions to make to the court. Counsel for plaintiff stated: "I have none." It therefore seems that counsel for plaintiff conceded that the evidence did not warrant a charge under the doctrine of the last clear chance. With this we agree, as there is no evidence in the case from which the jury might have found that the operator of the street car saw the plaintiff in a position of danger on the street car track in time, by the exercise of ordinary care, to have averted the injury.
Coming to the conclusions hereinbefore stated, it is manifest that substantial justice has not been done in this case, and the judgment of the trial court must be reversed, and this court coming on to render the judgment which should have been rendered by the trial court upon the motion of defendant below for a directed verdict, and for judgment non obstante veredicto, final judgment is rendered herein in favor of the plaintiff in error and against the defendant in error.
Judgment reversed and final judgment for plaintiff in error.
CARTER and ROBERTS, JJ., concur.