Cole v. New York Cent. R. Co.
| Decision Date | 28 July 1948 |
| Docket Number | 30975. |
| Citation | 150 Ohio St. 175,80 N.E.2d 854 |
| Parties | COLE v. NEW YORK CENT. R. CO. |
| Court | Ohio Supreme Court |
1. The word, 'misconduct,' not qualified or defined by the use of the words, 'wanton,' or, 'wilful,' is a generic term and when used to describe the alleged actionable conduct of the defendant, in a suit to recover damages for a wrongful death does not charge the defendant with any specific violation of a duty imposed upon him by law.
2. In an action to recover damages for the wrongful death of a trespasser struck by a train upon the track of a railroad company, an allegation in the petition that the death was caused by the failure of the defendant to remove such person from the tracks, after discovering him, lying thereon helpless and in a position of peril, in time to have removed him or otherwise averted injury to him, states a cause of action requiring the application of the doctrine of 'discovered peril.'
3. Where the trial court improperly instructed the jury before argument that unless it found 'by a preponderance of the evidence that the conduct of defendant's employees manifested a complete failure to exercise any care for the safety' of the decedent 'amounting to a complete heedlessness and callous disregard of the consequences of their conduct, even if you also find that defendant's watchman * * * was guilty of negligence, * * *' then its verdict must be for the defendant, to the prejudice of the plaintiff, and the court thereafter included similar charges in its general instruction to the jury, also to the prejudice of the plaintiff, a judgment for the plaintiff will not be reversed by reason of the inconsistency with a portion of the charge under which an award of damages would be warranted if the jury find the defendant failed to use ordinary care to avert injury to the decedent, after becoming aware of his peril.
Appeal from Court of Appeals, Lucas County.
This is an action to recover damages for wrongful death and originated in the Court of Common Pleas of Lucas county.
The plaintiff, appellee herein, is the administrator of the estate of William R. Auer, deceased, a boy 9 years of age at the time of his death.
The defendant, appellant herein, is The New York Central Railroad Company, a corporation organized under the laws of Ohio.
The parties will be referred to hereinafter as plaintiff and defendant as they appeared in the trial court.
The material averments of the plaintiff's second amended petition are substantially as follows:
At the time of the death of William R. Auer, the defendant owned and operated a line of railroad tracks passing through a densely populated section of the city of Toledo, which tracks ran parallel with Wilmot street and passed below grade under an overhead bridge on Oak street, a much traveled street and main thoroughfare. Defendant operated numerous freight and passenger trains over such tracks.
At or near the point where Wilmot street intersects Oak street, there long existed, with defendant's knowledge, acquiescence and consent, a footpath extending from Wilmot street down to, upon and over defendant's tracks, which footpath had been during such time used by the public generally, including children, which use was known to the defendant. The path was not in any manner enclosed but was open.
The defendant owned, operated and maintained an elevated signal tower near the overhead bridge on Oak street and in view of such footpath. The signal tower was equipped with signals, levers, red lanterns, red flags, fusees and other warning devices and a telephone connecting directly with other telephones maintained by the defendant for use in directing the operation of its trains, including a telephone in a traffic tower, operated by defendant and located adjacent to defendant's tracks at the defendant's bridge across the Maumee river approximately 2,000 feet west of Oak street. The height of the signal tower is such that the watchman stationed therein can observe the approach of trains on defendant's tracks for approximately one-half mile of the west and approximately one mile to the east.
On July 5, 1944, at about 4:45 p. m., plaintiff's decedent, William A. Auer, a boy of 9 years of age, was discovered by a passing pedestrian lying unconscious on defendant's tracks near the overhead bridge in the vicinity of the footpath and in plain view of the signal tower and of the agent and employee of the defendant then in charge of that tower. The pedestrian referred to immediately directed the attention of the defendant's watchman employee to the perilous position of the boy and thereupon the pedestrian and such employee descended to a point near where the boy was lying. Such employee made no attempt to remove the boy, directed that no attempt be made to remove him and returned to the signal tower, leaving the boy helpless and in a position of peril on defendant's tracks, although the employee knew that at any moment one of defendant's trains would probably pass over the track upon which the boy was lying.
Shortly thereafter, a passenger train, owned and operated by the defendant, which was proceeding in an easterly direction upon defendant's tracks, did run over the boy, instantly killing him. It is charged that 'the death of said boy was caused directly and proximately by the misconduct of the defendant, acting through its agent and employees, in the following particulars, to wit:
'(1) In failing to remove said boy from defendant's tracks, after discovering him, lying thereon helpless and in a position of peril, in time to have removed him in the exercise of ordinary care before the arrival of said passenger train.
'(2) In refusing to permit said pedestrian to remove said boy from his position of peril on defendant's tracks.
'(3) In failing promptly to signal or give notice to other employees of defendant, including those in charge of the operation of said passenger train, of the position of peril of said boy on defendant's tracks, after discovering said peril.
'(4) In failing to exercise any care to avert the injury and/or death of said boy after knowledge that failure to act would probably result in said boy's injury and/or death. the consequences which were reasonably certain to ensue from the presence of said certain to ensue from the presence of said boy in an unconscious and helpless condition on defendant's tracks over which a train of the defendant was reasonably certain to pass at any moment.
'(6) In failing to stop said passenger train after defendant knew of the position of peril of said boy on its tracks.'
Issue was made by answer which is in effect a general denial.
Upon trial of the case, the jury returned a verdict for the plaintiff in the sum of $8,500.
Upon appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas.
The case is in this court following the allowance of a motion to certify the record of the Court of Appeals.
Doyle, Lewis & Warner and Harold A. James, all of Toledo, for appellant.
Yager, Bebout & Stecher, of Toledo, for appellee.
The claimed errors specifically assigned are: Overruling the motion for a directed verdict in favor of the defendant at the close of the plaintiff's evidence and at the close of all the evidence; overruling defendant's motion for judgment on the pleadings and the evidence, notwithstanding the verdict; and overruling the defendant's motion for a new trial.
In addition thereto is assignment designated No. 4 which is as follows:
'The Court of Appeals erred in affirming and not reversing the Court of Common Pleas for error in its charge to the jury after argument in the following respects:
'(a) In submitting to the jury and reading from the second amended petition the first four specifications of alleged misconduct, although defendant specifically moved and requested the court both before argument and after argument to withdraw said specifications from the jury.
'(b) In charging the jury that misconduct meant that if defendant failed to exercise ordinary care the plaintiff could recover.
'(c) In failing to properly charge the jury on the issue of misconduct.
The following physical facts are disclosed by the record:
The defendant owns and operates a line of railroad tracks through the city of Toledo, two of which run underneath the bridge on Oak street. These two are main tracks and run generally in an easterly and westerly direction. Just north of the bridge and on the same grade as the bridge, defendant owns and maintains five switching tracks, immediately south of which is a signal tower, which is equipped with signals, red lanterns, red flags, and other warning devices, and also a telephone which is directly connected with a telephone in the defendant's traffic tower located at the Maumee river bridge about 2,000 feet to the west and also connected with telephones maintained by the defendant at other points. The duty of the employee in the signal tower at Oak street was primarily to raise and lower the gates for the protection of pedestrian and vehicular traffic crossing these five switching tracks and his duties were in no way related to the operation of trains on the tracks which passed under the overhead bridge, but to warn children and other trespassers from using the path from Wilmot street down to and on the tracks of the defendant.
Passing under the overhead bridge on Oak street are not only the two tracks owned and maintained by the defendant but also one track owned and maintained by the Baltimore & Ohio Railroad Company. The defendant's tracks were nearest the tower but the tower was above these tracks and about 70 feet from the nearest New York Central...
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