Cleveland, C., C. & I. Ry. Co. v. Schneider

• Decision Date: 01 May 1888
• Citation: 45 Ohio St. 678,17 N.E. 321
• Court: Ohio Supreme Court
• Parties: CLEVELAND, C. C. & I. RY. CO. v. SCHNEIDER.

17 N.E. 321

45 Ohio St. 678

CLEVELAND, C. C. & I. RY. CO. v. SCHNEIDER.

Supreme Court of Ohio.

May 1, 1888

Error to circuit court, Hamilton county.

On the 10th of September, 1881, Henry Schneider, while driving his team over the railroad tracks across Freeman street, in the city of Cincinnati, was killed by a locomotive run, managed and operated by the Cleveland, Columbus, Cincinnati &amp Indianapolis Railway Company. His widow, Mary Schneider, was appointed administratrix of his estate, and brought her action in the superior court of Cincinnati against the railway company, under the statute, for damages, averring that his death was caused by the negligence and wrongful conduct of the company's servants, and that he was without fault. The answer controverted all the allegations of the petition except that the defendant is a corporation under the laws of Ohio. The plaintiff obtained a verdict for $6,000, but, upon the hearing of a motion for a new trial filed by the defendant, consented to remit $2,000, and accept judgment for $4,000. The motion was thereupon overruled, and judgment entered accordingly. A bill of exceptions was duly taken, purporting to set out all the evidence, the charge of the court to the jury, certain instructions requested by the defendant which were refused, and certain other instructions requested by the defendant which were given. One of the grounds of the motion for a new trial was misconduct on the part of the plaintiff in the action, upon which affidavits were read by both parties, which affidavits are by reference made part of a separate bill of exceptions taken on the overruling of the motion. The railway company prosecuted error to the district court, and at the April term, 1885, the circuit court affirmed the judgment of the superior court and the reversal of these judgments is now sought in this court. The errors relied on relate to the charge of the court, its refusal to give in charge the instructions requested, and misconduct of the plaintiff in the progress of the trial. Such further statement with reference to them as is deemed material will appear in the opinion.

Syllabus by the Court

Where a railroad company uses the tracks of its road across a generally traveled public street in a populous town or city for its convenience in the switching of trains, cars, and locomotives, and the crossing is thereby rendered exceptionally dangerous, it is bound to exercise care proportioned to the increased danger arising from such use of its tracks, to avoid injury to persons using the crossing, and should in the exercise of such care, as a reasonable precaution for their safety, and means of preserving the legitimate uses of the street, maintain flag-men, or gates and gate-men, at such crossing, or adopt other equally adequate measures for that purpose. ^[1]

A railroad company which, in operating the road with the company owning the same, under an agreement to pay the latter a specified sum yearly, in excess of the amount to which it is entitled out of the joint earnings, for the use of its tracks and the cost of switching, uses the tracks at such crossing, where gates and gate-men are maintained, is bound to the same care in the use thereof as the company owning the road, and should anticipate the reasonable effect of the gates, and the gatemen's conduct in their management, on persons approaching the crossing, or about to cross, and operate the road at that place having due regard to such probable effect, and exercise care proportioned to the probable danger to persons using such crossing under these circumstances. And if, while so using the tracks of the road, it accepts the services of the gate-men employed by the company owning the road, instead of employing gate-men of its own, they become, for the time being, its servants, for whose negligence it is responsible; and, if it does not accept their services, its duty is to place competent gate-men at such crossing, and is responsible for its omission to do so. ^[1]

When gate-men are maintained at such crossings, it is their duty to observe the tracks, and know when, on account of trains or engines thereon, it becomes dangerous for persons to cross, and, when it is so, to close the gates, and keep them closed, to prevent persons from going upon the tracks, so long as the danger continues; and when the tracks are clear, or persons may cross without danger from passing cars and locomotives, then to open the gates, and keep them open, to enable persons to cross, so long as it is safe for them to do so, but no longer. Persons approaching the crossing, or about to cross, have the right to presume, in the absence of knowledge to the contrary, that the gate-men are properly discharging their duties; and it is not negligence on their part to act on the presumption that they are not exposed to dangers which can arise only from a disregard by the gate-men of their duties. Hence on open gate, with the gate-man in charge, is notice of a clear track and safe crossing; and, in the absence of other circumstances, when the gates are open, and the gate-men present, it is not negligence in persons approaching the crossing with teams to drive at a trot, or pass onto the tracks through the open gates without stopping to listen, though the view of the tracks on either side of the crossing is obstructed; nor, in such case, is their failure, when at a distance of 25 feet from the track, to look for locomotives 150 feet or more from the crossing, negligence, though they could have been seen. ^[2]

Matthews, Holding & Grieve , and E. H. Pendleton , for plaintiff in error.

Campbell & Bettman , for defendant in error.

WILLIAMS, J., (after stating the facts as above .)

The refusal of the court to give in charge to the jury the first instruction requested by the railway company is made the basis of an extended argument to show that it was denied the benefit of the proper rule of law on the subject of contributory negligence. Whether this is so depends, not only upon the accuracy of the instruction requested, but also upon the effect of the charge given. The charge requested is as follows: ‘ (1) It was the duty of the decedent to approach the crossing at such a rate of speed as would enable him to stop promptly, to avoid danger; and if the decedent approached the crossing on a trot, or at such rate of speed as prevented him from discovering the danger in time to avoid it, or prevented him from stopping promptly, or from turning his horses, or as induced him to hurry across, upon discovering the danger, rather than attempt to stop, then he was guilty of contributory negligence, and the plaintiff cannot recover even though defendant's negligence also contributed to the injury.’ The court, in its general charge on the subject, said to the jury: ‘ The deceased was bound to use the same care, in protecting himself, that the defendant company was bound to use in seeing that no person came to injury by the management of its cars and engines; that is, he was bound to use such care and prudence as a reasonable and prudent man would use in protecting himself against any injury. It was his duty to use his senses, in approaching the railway track, to discover whether or not there was any train or locomotive approaching which might injure him; to make such reasonable use of his eyes and other senses as a reasonable and prudent man would make; and if, by the use of them, he could have avoided the injury then he cannot recover from the company. But if he exercised such care as a reasonable, prudent man would exercise; and if the defendant were guilty of neglect in the running of this engine, and the deceased was killed by reason of that, then the company is responsible.’ And, at the request of the company, the court further instructed the jury ‘ that it was the duty of the deceased, in approaching the railroad crossing, to look for the railroad locomotive before attempting to cross; and, if his failure contributed to the accident, he cannot recover, even though the defendant's negligence also contributed to the injury. Even though the fireman and engineer were guilty of neglect contributing to the injury, yet that did not absolve the deceased from exercising the precaution of looking and listening for the approach of trains at such point on Freeman street as would enable him to discover the approaching train or locomotive, or from approaching the crossing at such gait as would enable him to control his horses promptly.’ The instructions given to the jury omitted nothing of substance contained in the one refused, unless it be that, ‘ if the deceased approached the crossing on a trot,’ he was guilty of contributory negligence. Indeed, the effect of the charge requested is that it is negligence in law for a person driving a team to approach at a trot a railroad crossing under any circumstances. It is undoubtedly true that persons approaching railroad crossings are bound to the reasonable and prudent exercise of their faculties to discover danger, and to the use of proper care to avoid injury; and, if the omission of either contributes to their injury, they are generally without remedy. But whether they have so exercised their faculties, and used such care, must depend upon the particular circumstance. For instance, it has been held that the absence of the usual sign-board of warning is a circumstance which may properly go to a jury to enable them to determine whether the person attempting to cross the railroad track has been guilty of such negligence as would defeat his recovery. The reason assigned is ‘ that, if the traveler is a stranger to the crossing, the want of such warning would be calculated to mislead him into danger; and, if he was familiar with the crossing, it might operate...