Cincinnati St. R. Co. v. Snell

• Decision Date: 25 February 1896
• Citation: 54 Ohio St. 197,43 N.E. 207
• Parties: CINCINNATI ST. RY. CO. v. SNELL.
• Court: Ohio Supreme Court

43 N.E. 207

54 Ohio St. 197

CINCINNATI ST. RY. CO. v. SNELL.

Supreme Court of Ohio.

February 25, 1896

Error to circuit court, Hamilton county.

Action by Charles B. Snell against the Cincinnati Street-Railway Company to recover damages for personal injuries. There was a judgment for defendant in the common pleas, which was reversed by the circuit court, and defendant brings error. Affirmed.

Shauck and Burket, JJ., dissenting.

Plaintiff going around rear of car was not guilty of contributory negligence, as a matter of law, in failing to stop and look down parallel track before attempting to cross.

Syllabus by the Court

1. The introduction of new forms of vehicles and of new motive power on street railways has not impaired the right of the foot passenger to safe passage at street crossings. It is the duty of drivers of vehicles, whether wagons, wheels, or cars, to so regulate the speed thereof, and give such warning of approach, at whatever cost of pains and trouble on their part, as that the footman, using ordinary care himself, may in the absence of unavoidable accident, cross in safety.

2. When a street-railway company operating a double-track road discharges a passenger at a street crossing, having reason to know that such passenger, in order to reach his destination must cross its tracks, it is the duty of such company to regard the rights of the passenger while on the crossing, and to so control the speed of cars on its tracks, and give such warning of their approach, as will reasonably protect the passenger from injury. Omission of such duty is negligence, and a person injured by reason thereof may maintain an action against the company for damages, unless prevented by his own negligence contributing to the injury.

3. A person about to cross the track of a street railway at a street crossing is bound to exercise care proportioned to the danger to be avoided, and the consequences which might result from want of it, conforming in amount and degree to the particular circumstances surrounding him; but it is only ordinary care which is required,-that which might reasonably be expected of persons of ordinary prudence. Ordinary care does not require him to anticipate negligence on the part of those operating the railway. And while he should use his faculties for his own protection, it is not negligence per se for him to omit to look in both directions for the approach of a car. Whether it is or not negligence depends upon the circumstances.

4. Where the evidence of the plaintiff shows actionable negligence on the part of the company, and the question of contributory negligence of the plaintiff depends upon a variety of circumstances, from which different minds may reasonably arrive at different conclusions as to whether there was contributory negligence or not, the question should be submitted to the jury under proper instructions; and it is error in such case for the court to direct a verdict for the defendant.

5. And where, in such case, the question as to whether or not the plaintiff exercised his faculties of seeing and hearing before attempting to cross is in issue, and the oral evidence tends to show that he did, while circumstantial evidence tends to disprove that claim, a condition is presented involving such variety of circumstances as makes it proper to submit the question to the jury.

Paxton, Warrington & Boutet and Kittredge & Wilby, for plaintiff in error.

John W. Wolfe and Thos. L. Mitchie, for defendant in error.

SPEAR, J.

The ground upon which the common pleas directed a verdict was that the plaintiff's evidence disclosed contributory negligence of such a character as to preclude a recovery. In other words, the holding was that, as matter of law, the plaintiff was guilty of contributory negligence. If the plaintiff's conduct, as shown by the undisputed facts left no rational inference but that of negligence, then the ruling was right, but, if the question of contributory negligence depended upon a variety of circumstances from which different minds might arrive at different conclusions as to whether there was negligence or not, then the ruling was wrong. This follows from the rule given in Ellis v. Trust Co., 4 Ohio St. 628. Applying the doctrine of that case, the motion involved an admission of all the facts which the evidence in any degree tended to prove, and presented only a question of law whether each fact indispensable to the right of action, and put in issue by the pleadings, had been supported by some evidence. If it had been, no matter how slight the evidence, the motion should have been denied, because it was the right of the plaintiff to have the weight and sufficiency of his evidence passed upon by the jury. But if he had failed to give evidence tending to establish any fact without which the law would not permit a recovery, he had nothing to submit to the jury, and a question of law only remained. We are aware that this rule is much criticized, and plausible arguments against its reasonableness have been adduced; but it has been followed uniformly, and should be applied until definitively overruled, or changed by legislation.

The plaintiff was himself bound to use ordinary care, such degree of care as men of ordinary prudence commonly use under like circumstances; care proportioned to the danger to be avoided, and the consequences which might result from want of it, conforming in amount and degree to the particular circumstances under which it was to be exercised. If all people exercised the greatest possible caution in approaching and crossing railroad tracks, accidents would be much less frequent than they are; but the law does not require extreme care. Such care, and such only, as ordinarily prudent persons could reasonably be expected to exercise under the circumstances, is the full measure. In order, therefore, to judge whether or not a fair question was presented regarding plaintiff's contributory negligence, we must inquire into the circumstances as disclosed by the evidence he introduced. The evidence showed that the company's road is operated on Eastern avenue, Cincinnati, a thoroughfare running east and west. It is a double-track electric road, the space between the tracks being about three feet. The cars are wider than the track, extending about one foot outside the rail. Defendant in error, Snell, resided on the north side of the avenue, between Washington and Weeks streets, the block between these streets being about 800 feet in length. Near his residence, in front of a drug store, there was a flagstone street cross walk at which the cars were accustomed to stop to receive and discharge passengers. Snell had been a daily passenger on the road for a number of years, and was known, as also his residence and place of getting on and off, to the railroad conductors. On the day of the accident Snell was a passenger on an east-bound car on the south track. As the car approached the crossing, the speed was slackened, to allow Snell to get off, but did not quite stop. He stepped off outside of the south track at the crossing, and turned north to go to the north side of the street, which required him to cross both tracks. As he neared the south rail of the north track he was struck by a west-bound car and injured. The evidence tended to show further that Snell had not observed the coming car before alighting, nor does it appear that he looked, while in the car, in the direction from which the other car was approaching. At some time, while crossing, he looked both east and west along the track, but the precise point from which he looked east is not clear. The conductor of the car on which he had ridden gave him no warning of the approaching car, nor was any gong or other alarm sounded, or warning given, by the motorman in charge of the coming car. He was inexperienced, having been the driver of a milk wagon until two or three days before. On the same car there was an experienced motorman, who was on for the purpose of giving the new hand instructions. At the moment Snell was struck, the car was running about 20 miles an hour, on a down grade, and ran about 100 feet before it could be stopped. The car from which Snell alighted was moving slowly east, and, had the other car been running at an ordinary rate of speed, Snell would probably have had, after he saw it, opportunity to avoid it, but the car moved so rapidly that, after seeing it, he had but time to throw up his hands and try to step back, when the car struck him.

The question presented for the court was, simply, did the evidence establish, as matter of law, that Snell was guilty of negligence contributing to his injury? The place of the accident was a street crossing, used as such by the public and recognized as such by the company. It was the duty of the company to keep in mind the right of pedestrians on that crossing, and especially its duty to observe the rights of its own patrons who were under a necessity of using that crossing in going from its cars to their houses. Ancient rights have not changed because new vehicles of travel have been introduced upon the streets, nor because a portion of the people who ride, being in haste of reach their destination, demand rapid transit. The streets remain for all the people, and he who goes afoot has the right, especially at a crossing, to walk to his destination. He should not be compelled to run, or to dodge and scramble, to avoid collision with vehicles. As a general proposition, drivers of vehicles have the same right to travel along the carriage way of a street that foot passengers have to walk there. There is no priority of right; so that the right of neither is exclusive. But it is to be borne in mind that the injury by collision is wholly upon the side of...