Baltimore & O. R. Co. v. McClellan
| Decision Date | 27 October 1903 |
| Citation | 68 N.E. 816,69 Ohio St. 142 |
| Court | Ohio Supreme Court |
| Parties | BALTIMORE & O. R. CO. v. McCLELLAN. |
Error to Circuit Court, Richland County.
The action below was brought by defendant in error, Ida L McClellan, administratrix, against the Baltimore & Ohio Railroad Company, to recover for the negligent killing of Madison McClellan, who met his death by being run over by the caboose of a local freight train. The defense was a denial of negligence by defendant and a charge of contributory negligence on the part of the deceased. At the conclusion of the plaintiff's testimony defendant moved the court to direct a verdict for defendant, which was overruled, and the cause submitted to the jury on plaintiff's testimony. A recovery was had, which was sustained by the circuit court and the company brings error. Reversed.
Syllabus by the Court
1. The rule that a person in full possession of his senses of sight and hearing should exercise them to protect himself from danger when about to cross a known track of a steam railroad at a street crossing, applies to a condition where the atmosphere is more or less clouded by steam and smoke, and it is negligence on his part which will defeat a recovery for injuries received from a passing train to undertake to cross without waiting for the atmosphere to clear so that his vision may be unobstructed, or taking other adequate means to ascertain the presence of danger.
2. Where the testimony of the plaintiff raises a clear presumption of negligence on his part which directly contributed to his injury, and no testimony is offered by him tending to rebut that presumption, it is the duty of the trial court to sustain a motion by the defendant, made at the conclusion of plaintiff's evidence, to direct a verdict and a refusal to sustain such motion is error.
J. H. Collins and Cummings & McBride, for plaintiff in error.
Douglass & Mengert, for defendant in error.
The accident occurred at a street crossing in the village of Butler, Ohio, about 3 o'clock of the afternoon of March 17, 1900, at a point where the main street of the village is crossed by two tracks of the company. At the point stated the street runs substantially north and south, and the railroad tracks substantially east and west. The station house is at the southeast angle of the intersection, facing north. The southerly track is the main track and the northerly one a side track, and both tracks curve sharply to the northeast from a point about 160 feet from the crossing. About 165 feet easterly from the crossing a spur track starts on the south side of the main track and extends upon a curve several hundred feet in a northeasterly direction, veering to the north and northwest. To the east of the station some 150 feet stands a water tank. The depot platform extends from the station house northerly to the main track, easterly to a point near the water tank, and westerly to the line of the street. At the time of the accident there stood upon the side track, headed west, a freight train with two locomotives attached, the forward one extending across the sidewalk and a few feet into the street proper. This train had been in that position 25 to 30 minutes. A passenger train, known as ‘ No. 3,’ had passed east just before the accident. Upon the spur track there had been standing a local freight train, placed there to allow the passage of No. 3, and intending to follow so soon as No. 3 had passed. The caboose of this train stood near the point of junction of the spur with the main track, the locomotive being at the other end. The cylinder cocks of the head engine of the freight train (the one standing on the side track headed west) were open, and considerable steam was escaping making some noise, and a good deal of smoke was issuing from the smokestack. The smoke and steam came on the south side of the engine, much of it to the ground. It was a little windy at the time, and the wind, being from the northwest, carried the steam and smoke in a southeasterly direction; that is, toward the easterly portion of the station house and over the main track.
The deceased was the keeper of a restaurant situated on the east side of the street a short distance north of the crossing. Just before the accident he had been to the station to inquire about some oysters he was expecting, and was on his return when it occurred. He was seen coming out of the door of the freight office and passing westerly on the platform. He was also seen in the act of stepping off of the platform and onto the track-the main track. He was going in a northwesterly direction, his back being partially toward the east. Some two or three minutes after No. 3 had passed, the local freight, the train which had been waiting on the spur track, backed westerly to clear the switch, coming at a speed of about 12 miles an hour. No alarm of any kind was given by the trainmen on the local, nor was any one stationed in the rear of the caboose to give warning. McCellan had just stepped down off the platform onto the track when the caboose struck him, having apparently made but two steps. He was not seen to stop from the time he was first seen going out of the door of the freight office until he was struck, nor was he seen to look to the east, the direction from which the caboose was coming. He had just reached the middle of the track, had made a second step, was in a walking position, walking in a northwesterly course, headed in that direction, to avoid the front of the engine of the freight train.
Three features of the case call for comment-one respecting the presence of the locomotives of the freight train on the side track, another the operation of the local freight, and, third, the action of the deceased himself.
1. It is claimed that the placing and maintaining of the locomotive partially across the street, and the producing there of smoke and of steam, with accompanying noise, was of itself negligence. But locomotives cannot be handled without the issuing of more or less smoke, nor can they be held in a waiting position, which was the fact as to this freight train, without the escape of more or less steam with some noise. A use which is a natural and necessary use of a locomotive cannot be of itself a negligent use. The leaving of the nose of that forward locomotive across the sidewalk for the length of time it stood there was an improper act. It may, for aught we know, have been a misdemeanor, but it was not actionable negligence in this case, although its presence there is an incident to be considered.
2. The management of the local freight was of a different character. It stood upon that spur track, awaiting the passing of the passenger train, in a position where necessarily, when it should back far enough to get upon the main track, its rear would be protruded upon the street; and, whether in backing the train that afternoon without the sounding of the whistle and the ringing of the bell the trainmen violated the statute or not, it certainly was incumbent upon them in some reasonable way to give warning-as by placing a watchman at the rear of the caboose-of the approach of the train to the street. The neglect of all attempt to warn was palpable negligence.
3. But what shall we say of the action of the deceased himself? He was possessed of all his faculties. He was a resident of the village, and knew the location of the spur track and its uses. He knew, apparently at least, that the passenger train had passed, and that the local freight was in, for he was expecting a shipment of oysters, probably coming by one or the other of those trains. He was at the station to inquire for that consignment, so that the presence of trains of that character, then or shortly before, near the station, would naturally be known to him. He had been on the platform far enough to the east to see the local freight as it stood upon the spur track. He knew-that is, he must be held to have known-that a steam railroad track is necessarily a dangerous place; that locomotives and cars, once in motion, are not easily or quickly stopped. All this must be attributed to him. What, then, was his duty from the standpoint of self-preservation? Wasn't it to look and listen for danger before stepping upon that track? What less could be expected of a person in possession of his senses? It is true that there is a more or less strong presumption of fact that the instinct of self-preservation will prevent a man from rushing into danger, but do we not see by everyday experience that men become careless of danger, either because of familiarity with it, or of temporary absence of mind which causes them to be ovlivious of its presence? No doubt this latter condition obtained with the unfortunate gentleman who lost his life that afternoon, for not only is there no evidence in the record that he either did look or listen, but the strong inference from the whole record is that he did neither.
But it is claimed-and this is the real and serious contention of counsel-that neither listening nor looking would have availed; that the noise of the escaping steam would have neutralized the...
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