C., C., C., & St. L. Ry. Co. v. Lee
| Decision Date | 09 December 1924 |
| Docket Number | 18250 |
| Citation | 111 Ohio St. 391,145 N.E. 843 |
| Parties | The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Lee, Admr. |
| Court | Ohio Supreme Court |
Negligence - Contributory negligence - Burden on plaintiff to dispel inference - Contributory negligence question of law, when - Trial court to direct verdict for defendant, when.
1. In an action where the negligence of the defendant is admitted or proven, and contributory negligence on the Part of the plaintiff is an issue, and the plaintiff's evidence raises a reasonable presumption of negligence on his part directly contributing to his injury, the burden is cast upon him to furnish proof, as a part of his case in chief, tending to dispel such inference, and a failure to furnish any such proof will defeat a recovery by him and it then becomes the duty of the court to direct a verdict.
2. In an action involving the negligence of the defendant and contributory negligence of the Plaintiff when, giving to every portion of the plaintiff's evidence the most favorable interpretation in favor of the absence of negligence on his part, such evidence under such interpretation is susceptible of no other reasonable inference than that of negligence on his part, directly contributing to his injury, the question of contributory negligence ceases to be a question of fact for the determination of the jury, but, for the purposes of the case becomes an uncontroverted fact for a declaration by the court of the law applicable thereto. It is the duty of the court in such case to direct a verdict.
The petition in this cause avers the corporate capacity of the defendant; that on the 1st day of August, 1920, the defendant was operating a double-track railroad in an easterly and westerly direction through Huron county, Ohio; that at Dignan's crossing in that county the tracks crossed at grade a public highway which ran in a northerly and southerly direction; that the southerly track of the defendant company is commonly called the east-bound main track and the northerly track the west-bound main track that On above date plaintiff's decedent approached the crossing from the south upon a public highway in a five-passenger automobile; that at the same time a passenger train of the defendant company approached the crossing from the west upon its northerly track; and that as the decedent came upon the crossing the passenger train collided with the automobile he was driving, killing him. The petition avers negligence upon the part of the defendant because of the failure to sound whistle or ring bell; because of the dangerous and defective condition of the crossing, by reason of weeds, bushes, trees, and poles on the right of way because of the elevation of the tracks 25 feet above the natural level of the highway; because of the narrowness of the passageway over the tracks, the construction of the crossing of loose stones, rough and difficult to travel over, the failure to maintain watchman, gates, or warnings, the operation of the train at dangerous rate of speed, approximately 60 miles per hour, the operation of east-bound train on the northerly track, failure to keep a lookout, and the failure to stop the train after it saw or should have seen plaintiff's decedent upon the tracks.
The answer of the defendant company denied negligence on its part, and averted that, even if it were negligent, the collision and death were due to the negligence of decedent. The reply denied the negligence of the decedent.
The cause was tried to a jury, and verdict was rendered and judgment entered for plaintiff. Error was prosecuted to the Court of Appeals, where the judgment was reversed upon the weight of the evidence upon the subject of the contributory negligence of decedent. The cause was again submitted to a jury which rendered a verdict for plaintiff and judgment was entered thereon. Error was again prosecuted to the Court of Appeals, where, by a divided court, the judgment was affirmed, the majority opinion stating:
"An examination of the record convinces the members of this court that the verdict and judgment are clearly and manifestly contrary to the weight of the evidence and are not sustained by sufficient evidence, but this court is not permitted to again reverse the judgment on that ground."
The other member of the court dissented from the affirmance and placed his dissent upon the ground that a verdict for the defendant should have been directed by the trial court. Error is prosecuted here to reverse the judgment.
Mr. Marion Murphy; Mr. C. P. Wickham; Mr. Edgar G. Martin, and Mr. H. N. Quigley, for plaintiff in error.
Messrs. Young & Young, for defendant in error.
The parties will be referred to in this opinion in the relation that they occupied in the trial court rather than in the relation they occupy here.
The record of plaintiff's evidence in chief discloses that at the time of the happening of the events out of which this action grew the highway at the point of crossing the tracks of the defendant company, known as...
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