Boles v. Baltimore & O. R. Co.

• Decision Date: 04 March 1959
• Docket Number: No. 35483,35483
• Citation: 168 Ohio St. 551,7 O.O.2d 427,156 N.E.2d 735
• Court: Ohio Supreme Court
• Parties: , 7 O.O.2d 427 BOLES, Appellee, v. BALTIMORE & OHIO R. CO., Appellant.

Page 551

168 Ohio St. 551

156 N.E.2d 735, 7 O.O.2d 427

BOLES, Appellee, v. BALTIMORE & OHIO R. CO., Appellant.

No. 35483.

Supreme Court of Ohio.

March 4, 1959.

Syllabus by the Court

The driver of a motor vehicle, about to pass over a railroad grade crossing on a public street, must exercise his senses of sight and hearing to discover whether trains are also about to pass over such crossing, and such exercise of the senses must be made at such time and place as to be effective for that purpose. Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Ohio St. 493, 151 N.E. 714, and Patton v. Pennsylvania Rd. Co., 136 Ohio St. 159, 24 N.E.2d 597, approved and followed.

Carl L. Boles (hereinafter called plaintiff) commenced this action in the Common Pleas Court of Montgomery County against the Baltimore & Ohio Railroad Company (hereinafter called defendant) to recover damages for injuries received when plaintiff's automobile and one of defendant's diesel locomotives (which was pulling a line of freight cars at the time) collided at the intersection of a railroad crossing and Nicholas Road in Dayton, Ohio.

At appropriate times during the trial, defendant interposed motions for a directed verdict, and, after a jury verdict and a judgment thereon had been rendered in favor of plaintiff, defendant moved for judgment notwithstanding the verdict. All defendant's motions were overruled.

Upon appeal to the Court of Appeals for Montgomery County, the judgment of the Common Pleas Court was affirmed without written opinion.

The cause is before this court, pursuant to the allowance of a motion to certify the record.

Further facts will be stated in the opinion.

Marshall & Smith, Dayton, for appellant.

Samuel A. McCray, Dayton, for appellee.

MATTHIAS, Judge.

Defendant assigns as one error the overruling by the Common Pleas Court of its motion for a directed verdict, made at the end of the trial. The motion is based upon two contentions, the second of which is 'that the plaintiff was guilty of negligence which proximately contributed to cause the collision and his own injuries so as to prevent his recovery against defendant as a matter of law.'

Defendant assigns other alleged errors for our consideration, but, in view of the conclusion we reach with respect to the alleged error mentioned above, it is unnecessary to consider the others.

That assigned error raises the determinative issue of whether the evidence shows the plaintiff to have been guilty of contributory negligence as a matter of law. However, in view of the wealth of law previously enunciated by this court on the subject of contributory negligence with respect to people who drive their motor vehicles onto railroad tracks in the paths of oncoming trains, the actual issue herein is whether there is anything novel in the factual situation presented by the instant case which would distinguish it from the long line of cases which seem to control.

In view of the fact that Judge Hart, in writing the opinion in Patton v. Pennsylvania Rd. Co., 136 Ohio St. 159, 24 N.E.2d 597, did such a thorough job of compiling and summarizing the line of cases referred to, it is unnecessary for this court to do more than refer to pertinent parts of some of them.

In the Patton case, the driver was held to have been guilty of contributory negligence even though it was stated that the train was traveling faster than allowed by a city ordinance. The third paragraph of the syllabus of that case is as follows:

'The driver of a truck, about to pass over a railroad grade crossing on a public street, must exercise his senses of sight and hearing to discover whether trains are also about to pass over such crossing, and such observation must be made at such time and place as to be effective for that purpose. (Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Ohio St. 493, 151 N.E.2d 714, approved and followed.)' (Emphasis added.)

In the case of Toledo Terminal Rd. Co. v. Hughes, 115 Ohio St. 562, 567, 154 N.E. 916, 918, Judge Day stated the question involved, as follows:

'This state of the record requires the solution of the proposition involved in the following question: Does the admission by the plaintiff that he knew of the location of a certain railroad crossing and of the existence of a heavy fog in the air which made it impossible to see more than a few feet ahead, together with the admission that he drove his automobile at night into the side of a freight train, constitute such negligence as would bar his recovery in an action against the railroad company for negligence in allowing its train to block such crossing without warnings by bell or light?'

After a discussion of such proposition, it was held that such driver was guilty of contributory negligence and could not recover as a matter of law from the railroad company.

In the case of Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Ohio St. 493, 151 N.E. 714, 716, the following colloquy establishes the facts upon which the decision of the court rested:

'The driver of the automobile, although saying that he had kept up a continual observation to the north and to the south as he drove toward the crossing, stated that he did not see the locomotive until it was just ready to strike the machine. He was asked and answered these questions:

"Q. At the time you were 15 or 20 feet from the track, what did you do? A. Looked, watched both ways.

"Q. Did you do anything else? A. Yes, sir.

"Q. What did you do? A. Slowed a little down, then I went on.

"Q. State whether or not you listened? A. Yes, sir.

"Q. Did you hear a locomotive bell or a whistle? A. No, sir.

"Q. Did you hear either? A. No, sir.

"Q. At the time your front wheels struck the crossing, what occurred? A. The train hit me just as I seen it; just took me just that quick; she come into us.

"Q. How far was the car from your automobile at the time you first noticed it? A. She was right on to us; just as quick as I seen it she hit us; we was gone down the line."

Finding the plaintiff guilty of contributory negligence, the court indicated its reasoning as follows:

'Surely it will not do for one to claim the right to recover simply because he has looked and did not see, if the conditions are such that, had he looked, he must have seen. When he says he did look, and the conditions establish the fact that any one who looked would have seen, then, if he says he did not see, his own evidence establishes the fact that he did not look, though he may think he did. To hold otherwise would simply be a manifest absurdity, and the doctrine that the traveler in a vehicle upon the highway when coming to a railroad grade crossing must look and listen, might as well be abandoned if one so placed, in broad daylight, can say that he looked in a given direction where there was a locomotive moving toward the crossing, and not farther than 75 feet away, and that he could not see it.'

Keeping the quoted testimony in the Rohrs case in mind, we quote the following portions of the plaintiff's testimony in the instant case:

'Q. You were looking to the north when you were 30 feet west of the railroad track? A. And then turned and looked to the right. [In the instant case, the train was headed south and the plaintiff east.]

'Q. Is that right? A. I was looking at 30 feet, something like 30 or 35 feet. I turned and looked to the right. I don't know how long it takes you to look to the right, and when I looked to the right I looked to the left. I turned my head back and looked toward the crossing and some approaching cars was approaching me.

'Q. From the point 30 feet west of the nearest rail of that track you were approaching, as you traversed that distance, as you drove that automobile over that 30 feet of roadway, did you look to the north for a railroad train? A. I wouldn't think I looked to the north for the 30 feet which I looked to the right and turned back and looked across and just before the train hit me I looked and seen it coming.

* * *

* * *

'Q. Well, prior to the time you collided with the railroad train, did you ever see that railroad train. A. Yes, sir. I saw that train just before it hit me is all.

'Q. Where was the train with respect to your automobile? Was it in front of it or to the left of it? Where was it? A. Just to the left.

* * *

* * *

'Q. And how far away was it at that time--the time you first saw the railroad train? * * *

* * *

* * *

'Q. You don't have to explain it. Just tell me the answer. * * * A. Well, that's back about 50 or 70 feet--between 50 and 70 feet.

'Q. Between 50 and 70 feet. Did you observe the train as it moved that 50 or 70 feet south toward the roadway, or did you take your eyes from it then and try to extricate yourself from the predicament in which you found yourself? A. When I seen the train, I cut my car deep to the right as I could.

'Q. Took your eyes off the train, didn't you? A. Certain I took my eyes off the train; fell over to my right.

'Q. All right, sir. Then you saw the train 50 to--how far, how many feet? A. 50 to 60, 70 feet, something like that.

'Q. Between 50 to 70 feet. Now the train was moving southbound, wasn't it? A. It was moving south.

'Q. Where was the front of your automobile at that moment with respect to the nearest rail of the tracks you were approaching? A. I'm thinking back--about somewhere between a car length and a half and two car lengths.

'Q. You were between a car length and a half and two car lengths west of the nearest rail, is that correct? A. Yes, sir.

'Q. Did you apply your brakes? A. To tell you the truth I don't know whether I applied my brakes or not, because it excited me a-seeing it and I fell over to the right-hand side. I wouldn't say----

'Q. You told me you saw a large yellow light. A. I did.

'Q. When you looked--A. That's what I saw, just a great big yellow dome light.

'Q. By 'dome light' you don't mean you saw a light in the cab of the engine, do you, in the dome of the engine? A....