Cleve. Ry. Co. v. Masterson

• Decision Date: 21 December 1932
• Docket Number: 23597
• Citation: 126 Ohio St. 42,183 N.E. 873
• Parties: The Cleveland Ry. Co. v. Masterson.
• Court: Ohio Supreme Court

183 N.E. 873

126 Ohio St. 42

The Cleveland Ry. Co. v. Masterson.

No. 23597

Supreme Court of Ohio

December 21, 1932

Negligence -- Last clear chance -- Plaintiff, in perilous position, may recover damages, notwithstanding negligence, when -- Defendant to exercise due care after actual knowledge of plaintiff's peril -- Pleading -- Insufficient to merely allege defendant saw or could have seen peril -- Ordinary negligence or last chance may be pleaded, and recovery had when -- Charge to jury -- Two-issue rule inapplicable to erroneous charge upon last chance, when.

1. Where a plaintiff, by his own fault, has caused himself to be placed in a perilous situation, he may recover under the rule of the "last clear chance," notwithstanding his negligence, if the defendant did not, after becoming aware of plaintiff's perilous situation, exercise ordinary care to avoid injuring him.

2. If recovery is predicated upon a state of facts invoking that rule, an instruction by the court, to the effect that if the plaintiff was guilty of such negligence his negligence would not preclude recovery, if the defendant failed to use ordinary care "after he saw or in the exercise of ordinary care should have seen" the plaintiff in a dangerous situation, is erroneous. The rule in Ohio requires the defendant to use due care after knowledge of plaintiff's peril. (Erie Rd. Co. v. McCormick, 69 Ohio St. 45, approved and followed; the first proposition of the syllabus in Railroad Co. v. Kassen, 49 Ohio St. 230 disapproved).

3. A petition, setting forth a state of facts as a basis for the application of the doctrine of the last chance but which, in that connection, merely alleges that defendant saw or could have seen the plaintiff in a perilous situation, is insufficient to invoke the rule; such a pleading has no higher virtue than a charge of the court upon that subject couched in similar language.

4. A plaintiff may, in his petition, plead a case of ordinary negligence and may also plead a state of facts invoking the last chance rule; and he may recover under whichever aspect the proof in the case assumes.

5. Where a general verdict is rendered finding for the plaintiff, and the trial court errs in its instructions regarding the duty of the defendant under the last chance rule, the two issue rule cannot be relied on to uphold the verdict.

This is a suit for personal injuries brought by Joseph Brenden Masterson against the Cleveland Railway Company. Detroit avenue in the city of Cleveland is a street forty-two feet in width, running approximately east and west. Near its center the street railway company has two tracks the northerly track being west bound, the southerly one east bound. About noon on September 3, 1927, Masterson, a youth of 18 years of age, was engaged in delivering meat orders in a Ford truck. On that day, while so engaged, he left his truck parked on the north side of the avenue, nearly opposite the point where he made his delivery. Leaving his car, he walked across to the south side of the avenue and made his delivery. He then attempted to recross the avenue in order to reach his truck parked on the north side. He testified that before recrossing there was a laundry truck standing at the south curb immediately to his left; that he saw an automobile approaching from the west and a street car approaching from the east on the north or west-bound track. He testified, "I figured I had plenty of time to get across from what I seen of the machine and the street car and everything." His testimony in chief as to walking across from the south to the north curb of the avenue is somewhat confusing with respect to the fact whether he looked in either direction after he left the curb; but, on cross-examination, he testified distinctly that he did not look either to the east or to the west:

"Q. After you left the curb did you again look to your right or to your left before you were struck by something? A. No."

The motorman testified that he was operating a train consisting of a motor and trailer, and going between eighteen and twenty miles an hour; that he saw a fast-moving automobile approaching from the west; that, when some forty feet from the plaintiff, seeing him poised on the south curb ready to step off, he immediately threw off the power, engaged the brake, and put on his reverse; that he saw the boy catapulted over the automobile, landing against the side and near the front end of the street car; and that the car had only traveled some sixty-five feet after the motorman applied his "emergencies" for stopping it.

The evidence discloses that the plaintiff, Masterson, was struck when he reached the south rail of the east-bound track by a Chevrolet automobile coming from the west, driven by one Stein, and that the plaintiff was hurled over the hood of Stein's automobile and onto the devil strip between the two tracks, with his left arm lying on the south rail of the west-bound track, where he was struck by the west-bound street car.

Four eyewitnesses testified in the case, two for the plaintiff and two for the defendant. The two eyewitnesses for the plaintiff testified that at the point of the accident they were also engaged in making a delivery, and had their truck parked at the south curb. Both said that the street car was approaching at the rate of five or six miles an hour, one of them testifying that, when Masterson was hurled upon the devil strip, the approaching street car was about two and one-half car lengths away from the point where he was struck by the automobile, and the other testifying that the car was much further away. When the street car had stopped, the plaintiff was found lying immediately in the rear of the front trucks of the motor car, with his injured arm over the south rail of the westbound track.

The two eyewitnesses offered by the defendant were a man and his wife driving close behind Stein's Chevrolet that struck the plaintiff. They both testified that the plaintiff started to run across the avenue from the south curb, and that, just as he reached a point near the center of the avenue, he was hurled into the air and landed on the devil strip, just a moment or so before the street car struck him.

In the trial court, Masterson recovered a judgment, which was later affirmed by the Court of Appeals. Certification was allowed by this court, and the cause is now here for review.

We are here concerned only with the issues made by the amended petition and the first defense of the answer thereto, consisting of a general denial; and, since the last chance doctrine is claimed to be invoked by the pleadings and evidence, only so much of the amended petition and the charge of the court as pertains to that doctrine will be alluded to.

After pleading the negligent and careless operation of the east-bound Chevrolet automobile driven by Stein, which hurled the plaintiff upon the street car track, the amended petition alleges that the motorman in charge of the street car "saw or by the exercise of ordinary care could have seen said plaintiff as he was walking across said street," and that he had ample opportunity to avoid injuring him, but negligently failed to do so. The pleading further alleged that, after said defendant knew, or in the exercise of ordinary care should have known, "that the plaintiff was in said dangerous positions aforesaid, and was lying in a helpless condition partly on and partly along the defendant's said track, as hereinbefore described, said The Cleveland Street Railway Company carelessly and negligently failed to stop said street car or to slacken the speed thereof in season to have avoided running over the plaintiff's arm and injuring him, although in the exercise of ordinary care it could have done so."

Touching that feature of the case, the court charged the jury in its general charge that, if the plaintiff himself was guilty of negligence in running in front of the automobile, which hurled him upon the track, but his negligence ceased at that time, then "his negligence in running in front of the automobile would not preclude him from recovering damages of the defendant company if the motorman, after he saw or in the exercise of ordinary care should have seen the plaintiff upon the tracks, failed and neglected to use ordinary care to stop the street car in time to avoid striking the plaintiff. In other words, even if the plaintiff was negligent in running in front of the automobile, yet if his negligence stopped there and did not actively continue until the moment he was hit by the street car, the plaintiff would still be entitled to recover if the motorman after he saw or in the exercise of ordinary care should have seen the plaintiff in a dangerous and perilous position on the track, failed to use ordinary care to stop the street car in time to avoiding hitting the plaintiff."

Messrs. Squire, Sanders & Dempsey, Mr. A. E. Powell, Mr. R. C. Green and Mr. H. E. Knachel, for plaintiff in error.

Messrs. Pfeiffer & Fults and Mr. M. C. Harrison, for defendant in error.

JONES J.

Since the decision by this court of West, Recr., v. Gillette Admr., 95 Ohio St. 305, 165 N.E. , 521, some of our nisi prius courts have had difficulty in applying the "last clear chance" doctrine in the trial of personal injury cases. The records of this court disclose that the appellate courts have less difficulty, and generally adhere to the rule that, where the plaintiff and defendant both are negligent, and the former's negligence places him in a perilous situation from which he cannot escape, the plaintiff still may recover, even though he negligently placed himself in such situation, if the defendant did not exercise ordinary care after the discovery of his peril. Various cases involving the...