Capelle v. Baltimore & O.R. Co.

• Decision Date: 10 January 1940
• Docket Number: 27600.
• Citation: 24 N.E.2d 822,136 Ohio St. 203
• Court: Ohio Supreme Court
• Parties: CAPELLE v. BALTIMORE & O. R. CO.

24 N.E.2d 822

136 Ohio St. 203

CAPELLE v. BALTIMORE & O. R. CO.

No. 27600.

Supreme Court of Ohio

January 10, 1940

Syllabus by the Court.

1. Where a railroad train is rightfully occupying its track at a common grade crossing in the open country, the presence of the train is usually adequate notice to an approaching traveler on the highway that the crossing is preempted, and no additional signs, signals or warnings, other than those specified by law, are ordinarily required of the railroad company.

2. In general, a person who drives, or is driven, into the side of a railroad train standing or moving over a grade crossing cannot, in the absence of special circumstances rendering the crossing peculiarly hazardous, recover from the railroad company for injuries receiverd thereby.

3. Section 7472, General Code, as it relates to the obstruction of highways by railroad trains, is designed to facilitate the movement of traffic and to discourage unnecessary blockade it is not a safety measure to prevent vehicles from being driven against the sides of trains.

4. Where a motor vehicle is run into a train which has occupied a crossing for a period of time in excess of the limit prescribed by statute or ordinance, such occupancy is generally to be regarded as a condition only, and not as a cause of the collision.

Certified by Court of Appeals, Huron County.

Sometime after midnight on May 2, 1937, the appellant, Lawrence Capelle, was riding as a passenger or guest in a 1926 model T Ford automobile owned and operated by Gene R. Roberts. Both the young men were sitting in the same seat of the automobile, which was without a top. They had visited two places of entertainment together and were proceeding in a southerly direction over old state route No. 99 from the village of Havana toward the village of Centerton, in Huron county.

At a point near Centerton, in the open country, the highway is intersected by a single track of the Baltimore & Ohio Railroad Company. Photographs attached to the bill of exceptions as exhibits show no unusual or hazardous conditions surrounding the crossing itself.

Employees of the railroad company were then engaged in a switching operation consisting of picking up a car on a nearby siding with the detached locomotive, and adding the car to a train of freight cars of which they had charge and which was then occupying the crossing. The automobile driven by Roberts either skidded into one of the freight cars and then landed in a ditch at the side of the road, or was turned into the ditch in an effort to avoid striking the freight car. Thereby the appellant sustained physical injuries of a substantial nature.

All witnesses agreed it was dark; some testified there were traces of fog or mist about the crossing, others that the night was clear, with good visibility.

Witnesses who were riding in an automobile behind Roberts and Capelle stated that for some time prior to and just before the misadventure the Roberts car was weaving back and forth across the road in a zigzag fashion.

There were the usual signs denoting the presence of the crossing. The railroad company had erected a cross-arm sign as prescribed by statute, and both the appellant and the driver who lived in the general neighborhood, admitted familiarity with the existence of the crossing.

Roberts testified that shortly before the mishap he was proceeding at a speed of twenty to twenty-five miles per hour; that the lights on the automobile were burning; and that the hard-surfaced road was slippery. Both Roberts and Capelle said, in substance, that they were looking ahead but did not realize their proximity to the crossing or see the train until it was too late to escape contact with it.

The principal allegations of negligence in the petition as amended were that the railroad cars were left standing unnecessarily across the highway for a period of more than five minutes, in violation of Section 7472, General Code, and that the company was negligent in failing to apprise travelers approaching on the highway of the presence of the cars by lights or other effective warnings.

There is testimony in the record suggesting that the train had occupied the crossing from twenty minutes to half an hour. There is also testimony that the time was only five or six minutes, and no longer than was necessary to complete the work being performed.

It was apparently determined by the trial judge that the only allegation of negligence which might properly be considered by the jury was the one claiming a violation of Section 7472, General Code, and he so advised the jury in the general charge. However, he also used language several times indicating that the other allegations of negligence were still before it, which made the charge contradictory and confusing.

A verdict of $5,000 was awarded the appellant and judgment entered thereon. An appeal on questions of law was perfected to the Court of Appeals, where the judgment of the trial court was reversed and final judgment rendered for the company by a concurrence of all three judges.

The court took the view that the petition did not state a cause of action; that the violation of Section 7472, General Code, if there was a violation, would create no liability against the railroad for the appellant's injuries, because it was not a contributing, proximate cause thereof, and that the trial court should have directed a verdict for the railroad.

Finding the judgment pronounced in conflict with the judgment of the Court of Appeals of the first appellate District in the case of Short v. Pennsylvania Rd. Co., 46 Ohio App. 77, 187 N.E. 737, the judges certified the record to this court for review and final determination.

Catri & Catri, of Sandusky, and Carpenter & Freeman, of Norwalk, for appellant.

G. Ray Craig, of Norwalk, and F. F. Frazier, of Zanesville, for appellee.

ZIMMERMAN Judge.

It was held by this court in the case of Reed, Adm'r, v. Erie R. Co., 134 Ohio St. 31, 15 N.E.2d 637, 639, that there was no liability on the part of the railroad for the death of an automobile passenger caused when the vehicle in which she was riding was driven against a moving freight train passing over a grade crossing in the open country at night.

We remarked in the opinion that, under the circumstances disclosed, 'the appellee was not obliged to provide other means of warning that 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.' We also had occasion to observe that the majority of holdings are to the effect 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.'

The following recent decisions, expressive of the modern viewpoint and representing the weight of authority, sustain the general proposition that a person who drives, or is driven into, the side of a train standing or moving over a grade crossing cannot, in the absence of special circumstances rendering the crossing peculiarly hazardous, recover from the railroad company for injuries received; and the existence of weather conditions tending to diminish visibility does not alter the rule. See Dolan v Bremner, Rec'r, 220 Iowa 1143, 263 N.W. 798; Bledsoe v. Missouri-Kansas-Texas Rd. Co., 149 Kan. 741, 90 P.2d 9; Chesapeake & Ohio...