Loos v. Wheeling & L.E. Ry. Co.
| Decision Date | 05 December 1938 |
| Citation | 60 Ohio App. 527,22 N.E.2d 217 |
| Court | Ohio Court of Appeals |
| Parties | LOOS v. WHEELING & L. E. RY. CO. et al. |
Syllabus by the Court.
1. Where, in an action involving a collision between a railroad train and an automobile at a grade crossing, one of the issues is whether the motorist knew he was approaching a railroad grade crossing at the time in question, and the evidence is in direct conflict on most of the issues, and to direct a verdict would require the court to say as a matter of law that the motorist knew that he was approaching a railroad grade crossing, or that if he did not know it he alone was to blame, and on the record before it the court could not say that, it is not error for the court to refuse to direct a verdict for the defendant railroad.
2. Where a railroad crossing at grade is in a municipality and crosses a heavily traveled street, there may be required of the railroad company, in the exercise of ordinary care precautions not specifically provided by statute.
3. It is not error for the trial court to charge the jury in a personal injury action that 'if the plaintiff is entitled to recover, then he is entitled to at least such sum up to the amount that he claims in his petition as will fully compensate him for the injury * * *.' This language does not suggest to the jurors that if plaintiff is entitled to recover he should be given at least as much and perhaps more than the amount sued for in his petition.
Smith Beckwith, Ohlinger & Froehlich, of Toledo, for appellants.
Brady & Gallagher, of Toledo, for appellee.
This appeal on questions of law is prosecuted by The Wheeling & Lake Erie Railway Company and The Baltimore & Ohio Railroad Company to reverse a judgment recovered against them in Common Pleas Court by appellee, Herman W. Loos, for injuries sustained in a collision on September 6, 1932 between an automobile operated by appellee and a locomotive at the point where The Wheeling & Lake Erie Railway crosses Navarre avenue in Toledo, Ohio. The locomotive, the property of The Baltimore & Ohio Railroad Company, at the time was operating some freight cars on the track of The Wheeling & Lake Erie Railway Company under a traffic agreement existing between the companies.
A verdict of $25,000 was returned by the jury which was later reduced by remittitur to $17,500.
The claims of negligence charged against the railroads by the amended petition are the maintenance of said crossing in an unguarded manner without any signals, guards, gates, watchmen, etc.; failure to ring a bell or sound a whistle or give other warning; failure to have a headlight or other lights burning; failure to have a cross-arm sign at the proper location; failure to keep the right of way to the north free of obstructions; failure to keep a lookout for traffic in Navarre avenue; running such train at a speed of 20 miles per hour in violation of an ordinance of the city; and failing to keep the locomotive under control.
At the conclusion of the trial and before argument the court instructed the jury that there was no evidence of unreasonable speed of the locomotive, and also instructed the jury that an ordinance of the city of Toledo prohibited the blowing of whistles by locomotives, and that failure to sound the whistle would not be negligence.
The facts as set forth in the record before us appear substantially as follows:
On the above mentioned date, September 6, 1932, the appellee, accompanied by his son and one Courtney Kalmbach and his son, was returning from Cleveland to Toledo late at night and approached from the east the grade crossing above referred to at about 1:30 a. m. In going to Cleveland on the morning of the previous day, they had driven out Woodville street. At a point somewhat parallel with but some distance south of Navarre avenue they encountered a detour between Toledo and Elmore, which took them south of Woodville street going east. On the return trip they came toward Toledo on Woodville road to the detour, then followed the designated detour route for westbound traffic, which was north of Woodville road and which brought them into Toledo on Navarre avenue. Appellee was then driving the car, Mr. Kalmbach sat in the front seat with appellee, and the two sons occupied the rear seat.
Evidence was offered by appellee tending to show some obstructions to visibility in approaching the crossing from the east, especially at night, in the way of buildings, trees, weeds and growing corn. There is evidence that no markings appeared on the brick pavement indicating the presence of a crossing, and that the tops of the rails are flush with the pavement at the crossing. Two tracks are maintained at this crossing by The Wheeling & Lake Erie Railway Company, and the locomotive and cars in question were traveling south on the easterly track.
Both appellee and Mr. Kalmbach testified that they were unfamiliar with the detour and did not know they were on Navarre avenue and did not know of the existence or proximity of the railroad crossing as they approached it, and appellee stated he had not driven on Navarre avenue previously and that he had to follow the detour signs. Appellee and his son and Mr. Kalmbach testified further that their car windows were open and that neither heard any engine bell or whistle, nor did they see any headlight nor any light coming from a headlight. It appears that the son of Mr. Kalmbach was asleep in the rear seat at the time of collision. The other three occupants of the car stated they heard no sound of an approaching train and saw no cross-arm sign to warn them of the presence of the crossing; that the first they knew of the presence of a crossing was when they were struck by the locomotive coming from the north, as they drove onto the track at a speed of about 20 to 25 miles per hour.
It appears that a cross-arm sign was located at the crossing about 13 feet east of the east rail of the track and three feet north of the pavement and that beginning at a distance of about 180 feet east of the crossing and up to it the pavement had been widened out from 20 feet to 36 feet, thus placing the cross-arm sign considerably north of where it would be located if the pavement maintained the same width up to the crossing. Whether the location and character of the sign complied with the statute was not to be decided as a matter of law. Baltimore & O. R. Co. v. Reeves, 6 Cir., 10 F.2d 329.
The testimony of three occupants of the automobile was corroborated by three other witnesses, one of whom stated she was on her way home in her car, coming from Toledo, on Navarre avenue, and upon coming to the crossing, with which she was familiar, she stopped, looked both ways, and upon seeing no train approaching, hearing no bell, whistle or other signal, proceeded to...
To continue reading
Request your trial