Canterbury v. Pennsylvania R. Co.
| Decision Date | 18 June 1952 |
| Docket Number | Nos. 32898 and 32899,s. 32898 and 32899 |
| Citation | 107 N.E.2d 115,48 O.O. 34,158 Ohio St. 68 |
| Parties | , 48 O.O. 34 CANTERBURY v. PENNSYLVANIA R. CO. (two cases). |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Where a minor institutes an action in his own name, no attack is made upon his capacity to sue before the filing of an answer to the merits of the claim, and in the midst of the trial the minority of the minor is discovered, it is error for the court to refuse to permit the minor to amend his petition by interlineation by inserting the name of a next friend and to allow the next friend to verify and refile the petition as amended.
2. The presence of a railroad train or cars on a crossing is ordinarily notice to the driver of a vehicle on the highway of such obstruction, and if there are no unusual circumstances creating a peculiar hazard, the railroad company is not chargeable with negligence merely because it leaves a train across the highway without stationing guards, placing lights on the cars or employing other methods of warning, not required by statute or ordinance, of the presence of the cars across the highway.
3. Where a railroad crossing is in the open country, the railroad tracks are plainly visible for a long distance to one traveling on the highway, there are no obstructions to the view, and the warnings required by statute are present, the fact that the highway, beginning at a place 350 feet from the crossing, where the highway is about one foot below the level of the crossing, descends gradually to a point about 150 feet from the crossing, where it reaches a maximum depth of about three and one-half feet below the crossing level, and then rises in an almost uniform grade to the crossing does not constitute a special circumstance rendering the crossing peculiarly hazardous.
On September 2, 1949, at about 10:45 p. m., Nettie Jane Canterbury and her husband, James Canterbury, were riding in an automobile with James Canterbury's half brother Perry and Perry's wife and two boys. The Canterburys were sitting in the rear seat of the automobile with one of the Perry children. Perry was driving and his wife and one child were in the front seat with him.
The Canterburys and Perrys were en route to West Virginia on a pleasure trip and were driving westwardly on state route 98 in Crawford county.
Route 98 runs in an easterly and westerly direction and is crossed by the tracks of The Pennsylvania Railroad Company, hereinafter designated defendant, which tracks run in a northerly and southerly direction. At the location with which this cause is concerned there are two tracks, the easterly one being the main track and the westerly one, a side track which was constructed a little lower than the main track.
At the time of the accident herein, the night was dark but the weather conditions were good and the road was dry. A freight train of defendant was stopped, blocking route 98, the stop having been caused by some mechanical failure. The car which immediately blocked the highway, and which was neither at the front nor at the rear of the train, was a steel coal car constructed with hoppers at the bottom for unloading. The distance from the track rail to the top of the car was 10 feet, six inches. The car was so situated on the track that one set of wheel trucks was on one side of the highway and the other set on the other, leaving the body of the car directly across the highway.
As the automobile was traveling along about 40 miles an hour with its lights dimmed, James Canterbury felt the brakes being applied and saw something in front of him. In a second or two there was a crash. The automobile had collided with the railroad car which blocked the highway, and both James and Nettie Jane Canterbury sustained injuries and damages, to recover for which they instituted actions against defendant in the Court of Common Pleas of Erie County.
The record discloses that as route 98 approaches defendant's tracks, there was, on the night of the accident, a track-approach sign about 390 feet east of the crossing, which was of the reflector type and contained the letters, 'R, R,' and an 'X' mark in the center between the two R's. There was also a sign of the standard railroad-crossing type located at the northeast corner of the highway and the railroad tracks. Another sign marked 'Uneven Tracks' was at the side of the road, 250 feet from the crossing.
The highway as it approaches the railroad crossing from the east dips slightly. Beginning at a place 350 feet east of the railroad, where the highway is about one foot below the level of the crossing, the highway descends gradually to a point about 150 feet east of the crossing, where it reaches a maximum depth of 3.35 feet below the crossing level. From that point, the highway rises in an almost uniform upward grade to the crossing. There was an unobstructed view of the railroad tracks for a long distance in each direction, the crossing was in the open country and there were no obstacles of any kind to obstruct the view or to divert a driver's attention.
In the case of Nettie Jane Canterbury (No. 32898), a jury was impaneled and sworn, some witnesses were called in her behalf, and she, herself, took the stand in direct examination whereupon it was disclosed that she was 20 years of age.
A motion was made by defendant to dismiss her case for want of capacity as a minor to maintain the action in her name.
Thereupon, counsel for Nettie Jane Canterbury orally moved for leave to amend her petition by interlineation by inserting the name of James Canterbury as husband and next friend, and for leave to allow the next friend to verify the petition, to refile it, and for the case to proceed as though it had originally been commenced by the next friend.
The trial court denied the motion of Nettie Jane Canterbury and granted that of defendant.
Upon appeal the Court of Appeals reversed the judgment of the trial court.
In the case of James Canterbury (No. 32899), a trial was had, a motion by defendant for a directed verdict at the close of plaintiff's evidence was overruled, as was a similar motion at the close of all the evidence, and the jury returned a verdict in favor of James Canterbury in the sum of $1,700. Thereafter defendant moved for a judgment notwithstanding the verdict, which motion was overruled and judgment entered for James Canterbury.
Upon appeal the Court of Appeals affirmed the judgment of the trial court.
The causes are before this court upon the allowance of motions to certify the record.
Young & Young, Norwalk, for appellees.
Flynn, Py & Kruse, Sandusky, for appellant.
In case No. 32898 the question presented is whether the Court of Appeals erred when it reversed the judgment of the Court of Common Pleas dismissing the petition of Nettie Jane Canterbury for the reason that she was a minor and had not instituted her action by a next friend.
The trial court refused to permit an amendment of the petition and the substitution of a next friend as plaintiff. The refusal was based upon Section 11247, General Code, which reads:
In reversing the judgment of the trial court the Court of Appeals relied upon the following statement in 43 C.J.S., Infants, § 108, p. 281:
'It is not an absolute prerequisite to jurisdiction of an action by an infant that he should sue by guardian ad litem or next friend, and the suit or action is not void on that ground alone; it merely affects the regularity of the proceedings, and the defect is amendable; the judgment or decree is not void.'
The bringing of an action by a minor in his own name constitutes simply a failure to follow procedural statutes. The minor is the true plaintiff and it is for him that recovery is sought and for his benefit that the action is prosecuted.
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Gollihue v. Consolidated Rail Corp., s. 14-96-23
...Capelle v. Baltimore & Ohio Rd. Co. (1940), 136 Ohio St. 203, 16 O.O. 215, 24 N.E.2d 822, and Canterbury v. Pennsylvania Rd. Co. (1952), 158 Ohio St. 68, 48 O.O. 34, 107 N.E.2d 115. Appellant argues that the Hood decision was not overruled by Matkovich and that railroads are still under a d......
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Thomas Gollihue, Iii v. Consolidated Rail Corp.
...it dealt with facts distinguishable from those presented in Matkovich. In Hood, the plaintiff was injured by a moving train. In Matkovich, Canterbury, Capelle, the plaintiffs were injured when their vehicles struck a train stopped in the railroad crossing. Appellant therefore argues that th......
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