Cleveland Ry. Co. v. Wendt
| Citation | 165 N.E. 737,120 Ohio St. 197 |
| Decision Date | 20 March 1929 |
| Docket Number | 21253 |
| Parties | The Cleveland Ry. Co. v. Wendt. |
| Court | United States State Supreme Court of Ohio |
Negligence - Plaintiff, seeing street car approaching, cannot complain of failure to give warning - Hazarding life to retrieve property not justified where peril imminent - Last clear chance inapplicable, when - Continuing and concurrent negligence contribute to produce injury.
Plaintiff cannot complain of the failure to give warning of the approach of a street car where he testifies that he saw and knew of its approach in time to save himself from injury.
While an effort to rescue human life in the presence of a known imminent peril is justifiable if the rescuer does not rashly and unnecessarily expose himself to danger, one who has dropped his property upon a street car track is not justified in hazarding his own life by attempting to rescue it when he knows his peril to be imminent.
The "last clear chance" rule presupposes antecedent fault or negligence on the part of the plaintiff; it does not apply in a case where the continuing negligence of the plaintiff and the concurring negligence of the defendant both contribute to produce the injury; it only applies where the fault or negligence of the plaintiff is the remote and that of the defendant is the proximate cause of the accident.
In the common pleas court William Wendt, the plaintiff, brought his action against the railway company for personal injuries. His amended petition alleged that the proximate cause of his injuries resulted from the negligence of the defendant in the following specifications: The defendant failed to keep a proper lookout and to stop the car, when, in the exercise of ordinary care, it could have done so in time to avoid injury after the defendant saw or could have seen plaintiff; in failing to warn plaintiff by sounding the gong; and in failing to exercise ordinary care in stopping the street car after seeing the plaintiff in a position of danger.
The answer was a general denial. In the course of the trial and at the close of the plaintiff's evidence, the defendant moved for a directed verdict, and renewed that motion at the close of the entire evidence. These motions were overruled by the trial court. The trial resulted in a general verdict and judgment for the plaintiff. That judgment was affirmed by the Court of Appeals; whereupon the railway company prosecuted error to this court. The only error complained of in this court is the overruling of the motions of the railway company for a directed verdict. This necessarily requires an examination of the record in order to ascertain whether the trial court committed error. In the main, the facts are substantially without dispute.
About 5:30 p.m. on January 11, 1926, the plaintiff and a coemployee by the name of Ormonde, both living on the west side of Cleveland, boarded a street car for the east side of the same city, to see an acquaintance of Ormonde. After some fifteen minutes conversation with this acquaintance, Wendt and Ormonde, about 7:45 p.m., approached the corner of Euclid avenue and Coltman road for the purpose of boarding a returning street car going west towards their home. At the place of the accident Euclid avenue runs east and west, and Coltman road, running from the south, stops at Euclid avenue. There was no car stop at this corner. The plaintiff and his companion walked north on Coltman road, approach- ed Euclid avenue, and crossed it for the purpose of taking the street car at a car stop about 200 feet west of the Euclid avenue and Coltman road corner. As they started across the street they saw the approaching car, fully lighted, coming from the east. Leaving the south side of Euclid avenue, with Ormonde in front, they attempted to cross the car track ahead of the approaching car. Ormonde succeeded in doing so, but Wendt was struck and knocked into the devil strip. Ormonde does not testify to the manner of the accident to Wendt, as he did not see how it occurred. Wendt testified that as he started across the street he not only was warned of the approaching car by Ormonde, but that he saw it twice, the first time when it was about five or six hundred feet distant. He testified that he was carrying a small bundle of sheet iron strips for sled runners; that the strips were from 24 to 28 inches in length, contained in a bundle that was 1 1/2 inches thick, and weighing about a pound and a half; that, as he crossed to the west-bound track, his overcoat "flopped" the bundle out of his hand; that, after he dropped the bundle, he looked the second time, and saw the street car approaching about two or two hundred and fifty feet away, and coming at a normal rate; that he then picked up the bundle and as he raised it he was struck. He said he tried to jump back, but he "guessed it was too late." The street car was a center type car, having center doors for exit. There is no dispute in the testimony as to the fact that Wendt was found in the devil strip on the left side of the car, and on the side from which he was approaching. One witness testified that the car stopped in a car length from where Wendt was struck. The foregoing testimony constituted the plaintiff's case.
Both Wendt and Ormonde denying that they had drunk anything on this occasion, the defendant offered testimony of two policemen tending to prove that Ormonde was under the influence of liquor, and of two physicians who testified that they discovered the odor of alcohol on Wendt when he was taken to the hospital. There was testimony that the plaintiff dropped no bundle, but, on the contrary, that Wendt in dodging through eastbound traffic, ran into the side of the car. Without taking into consideration the testimony of the motorman, two disinterested witnesses, one a passenger in the front of the car and the other a physician driving in the eastbound traffic at that point, both testified that Wendt, carrying an object in his hand, ran into the side of the car at or near the front vestibule window. The physician, who saw the injured man struck, and who was the first to reach him, testified that Wendt "ran into the side of the street car just back of the curved front of the car," causing Wendt "to fall straight down instead of being bumped ahead." There is no dispute of the fact that all of the lights were burning on the approaching car. Three witnesses testified that the car stopped within one-half its length from the point where Wendt was struck.
Messrs. Squire, Sanders & Dempsey and Mr. Donald M. Marshman, for plaintiff in error.
Messrs. Day, Corrigan & Day, for defendant in error.
Seldom has a case been presented to this court where a recovery of damages had so little merit as this case develops. In its opinion the Court of Appeals frankly states that it might have come to a different conclusion from that arrived at by the jury had it been the triers of fact in the first...
To continue reading
Request your trial