Constance J. O'connell v. Chesapeake & Ohio Railroad Co.
| Decision Date | 09 November 1989 |
| Docket Number | 56101,89-LW-4116 |
| Parties | Constance J. O'CONNELL, Plaintiff-Appellant, v. CHESAPEAKE & OHIO RAILROAD COMPANY, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Donald Traci, Dennis R. Lansdowne, Cleveland, for plaintiff-appellant.
Harley J. McNeal, Cleveland, for defendant-appellee.
JOURNAL ENTRY and OPINION
Plaintiff-appellant, Constance J. O'Connell, appeals from the judgment rendered for defendant-appellee, the Chesapeake and Ohio Railroad Corp., and the subsequent denial of the appellant's two motions for a new trial.
On August 10, 1985, and at approximately 2:30 p.m., the appellee's train left Columbus, Ohio and traveled northward to the Walbridge train yard located in Troy Township. At approximately 9:50 p.m., the crew of the train was informed by the Walbridge train yard that the yard was full and that the train would have to wait outside the yard on a track which crossed State Route 163. Since the train consisted of one hundred and fifty cars, it was decided to "cut" the train by unhooking some of its cars and thus unblocking the railroad crossing located at State Route 163. Upon "cutting" the train, twenty-five cars were located north of State Route 163 while the remaining one hundred and twenty five cars were located south of State Route 163.
At approximately 10:30 p.m., the Walbridge yard granted the train crew permission to enter the train yard at which time the train was recoupled. This recoupling resulted in the presence of railroad car No. 25, an empty flat car, in the railroad crossing located at State Route 163. It should be noted that the railroad crossing was identified by a railroad crossbuck sign and painted warning signs which consisted of white reflectorized paint located on the road pavement. No flashers or a gate were present at the railroad crossing. B.THE APPELLANT'S COLLISION WITH THE APPELLEE'S TRAIN
Earlier that evening, the appellant had finished her daily schedule as an employee of the Ohio Air National Guard and thereafter socialized at the Non-Commissioned Officer's Club. At approximately 9:45 p.m., the appellant left the Non-Commissioned Officer's Club and proceeded by automobile to her home located in Elmore, Ohio. This trip necessitated travel over State Route 163 and the traversal of the aforesaid railroad crossing. While attempting to cross the railroad crossing at State Route 163, the appellant drove her automobile into the railroad flat car which was blocking the railroad crossing. As a result of the collision, the appellant sustained numerous and serious injuries which involved lacerations to her face, permanent scarring, broken facial bones, broken collar bones, broken right shoulder bones, a broken right wrist and right hand, a broken left pelvic bone, a broken left leg, and a broken right ankle. C.THE APPELLANT'S COMPLAINT
On January 8, 1986, the appellant filed a complaint in the Cuyahoga County Court of Common Pleas. This complaint was premised upon the negligence and/or wanton and willful misconduct of the appellee in leaving an unlighted and unguarded railroad flat car across State Route 163 which was a public way. D.THE JURY TRIAL
On March 14, 1988, the appellant's claim for negligence and/or wanton and willful misconduct was tried before a jury. On March 25, 1988, the jury returned a finding for the appellee through the use of a set of eight interrogatories and the resulting answers. The eighth and final jury interrogatory found that the appellant was 70% negligent in causing her own injuries while the appellee was 30% negligent in causing the injuries sustained by the appellant. Although no general verdict was rendered by the jury, the trial court entered a judgment for the appellee based upon the jury's answers to the interrogatories. It should be noted that both the appellant and the appellee agreed to the elimination of the general verdict and the entry of judgment by the trial court as based upon the interrogatory answers. E.THE APPELLANT'S TWO MOTIONS FOR NEW TRIAL
On March 31, 1988 and again on April 6, 1988, the appellant filed two motions for new trial. The motions raised the issues of inconsistent jury interrogatory answers, the manifest weight of the evidence, and a lack of substantial justice. On July 5, 1988, the trial court denied the appellant's motions for new trial. F.THE APPELLANT'S APPEAL
Thereafter, the appellant timely brought the instant appeal, consisting of the assignments of error, from the trial court's entry of judgment for the appellee as based upon the jury interrogatory answers and the failure of the trial court to grant the appellant's two motions for new trial.
II.
The appellant's first assignment of error is that:
"THE TRIAL COURT ERRED IN NOT GRANTING A NEW TRIAL WHEN THE JURORS' RESPONSES TO INTERROGATORIES DID NOT VALIDLY SUPPORT A VERDICT FOR THE DEFENDANT." A.ISSUE RAISED: THE JURY INTERROGATORY ANSWERS WERE INCONSISTENT
The appellant, in her initial assignment of error, argues that the trial court erred as a matter of law in not granting a new trial. Specifically, in support of her first assignment of error, claims that the jury's answers to the interrogatories did not support a judgment for the appellee. Specifically, the appellant argues that the jury interrogatory answers were hopelessly inconsistent with each other.
This assignment of error is not well taken. B.THE JURY INTERROGATORY ANSWERS
On March 25, 1988, the jury returned the following interrogatory answers to the trial court:
"We, the jury, being duly impaneled and sworn, do further find that the plaintiff is entitled to recover the sum of $-0- as punitive damages."
This interrogatory was signed by seven jurors: Diane LoPiccolo, Edith Hall, Gloria Hudson, Barbara Bohers, Daisy Bryson, Carol Sanniti, and Frances Eisenmann. Juror Lynn Fishman did not sign.
This interrogatory was signed by six jurors: Diane LoPiccolo, Edith Hall, Carol Sanniti, Barbara Bohers, Gloria Hudson, and Daisy Bryson. Jurors Lynn Fishman and Francis Eisenmann did not sign.
This interrogatory was signed by seven jurors: Lynn Fishman, Diane LoPiccolo, Edith Hall, Carol Sanniti, Barbara Bohers, Gloria Hudson, and Daisy Bryson. Juror Francis Eisenmann did not sign.
This interrogatory was signed by six jurors: Lynn Fishman, Diane LoPiccolo, Barbara Bohers, Frances Eisenmann, Carol Sanniti, and Gloria Hudson. Juror Edith Hall and Daisy Bryson did not sign.
This interrogatory was signed by six jurors: Lynn Fishman, Diane LoPiccolo, Barbara Bohers, Gloria Hudson, Carol Sanniti, and Francis Eisenmann. Juror Edith Hall and Daisy Bryson did not sign.
This interrogatory was signed by seven jurors: Lynn Fishman, Diane LoPiccolo, Edith Hall, Gloria Hudson, Barbara Bohers, Frances Eisenmann, and Carol L. Sanniti. Juror Daisy Bryson did not sign.
This interrogatory was signed by seven jurors: Lynn Fishman, Diane LoPiccolo, Edith Hall, Gloria Hudson, Barbara Bohers, Frances Eisenmann, and Carol Sanniti. Juror Daisy Bryson did not sign.
This interrogatory was signed by six jurors: Diane LoPiccolo, Edith Hall, Carol Sanniti, Barbara Bohers, Gloria Hudson, and Daisy Bryson. Jurors Francis Eisenmann and Lynn Fishman did not sign. C.JURY INTERROGATORY ANSWERS READ TO APPELLANT AND APPELLEE
Upon the return of the jury interrogatory answers to the trial court, the trial court read each of the jury's interrogatory answers aloud and in the presence of both the appellant and the appellee. The trial court thereafter immediately inquired of both the appellant and the appellee whether there were any requests prior to the discharge of the jury. Counsel for the appellant responded that "I have none." Thus, no objection was raised by the appellant upon discovery of the content of the jury interrogatory answers nor was any objection made by the appellant prior to the discharge of the jury. D.FAILURE OF APPELLANT TO OBJECT TO JURY INTERROGATORY ANSWERS CONSTITUTES A WAIVER
The failure of the appellant to timely object to the jury's interrogatory answers prior to the discharge of the jury, pursuant to Civ.R. 49, constituted a waiver of any claimed error with respect to any inconsistencies contained in the jury interrogatory answers. Contrary to the appellant's argument, any claimed error with respect to...
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