Continental Baking Co. v. Pennsylvania R. Co.

• Decision Date: 06 February 1950
• Citation: 87 Ohio App. 505,96 N.E.2d 258
• Parties: , 43 O.O. 306 CONTINENTAL BAKING CO. v. PENNSYLVANIA R. CO.
• Court: Ohio Court of Appeals

Page 505

87 Ohio App. 505

96 N.E.2d 258, 43 O.O. 306

CONTINENTAL BAKING CO. v. PENNSYLVANIA R. CO.

Court of Appeals of Ohio, Lucas County.

Feb. 6, 1950.

Syllabus by the Court.

1. Conflicting testimony with respect to an issue presents a fact question for the jury, or the court in trying a case without a jury, and a reviewing court is bound by such finding unless it be manifestly against the weight of the evidence on the issue.

2. A driver approaching a railroad crossing at night who can not effectively see a train approaching without lights, must listen at a time and place and in such manner as to avoid a collision.

3. Where the driver of a vehicle approaching a railroad crossing at night testifies that he looked but did not see and fails to testify positively that he listened, but does testify that he did not hear an approaching train and there is positive testimony that the engine bell was ringing and the whistle blown for the crossing, under the doctrine of incontrovertible facts, such driver did not listen at a time and place and in such manner as to be effective to avoid the collision and was guilty of negligence as a matter of law proximately contributing to the damage suffered by his employer.

Shumaker, Loop, Kendrick & Winn, Toledo, for appellant.

Marshall, Melhorn, Wall & Bloch, Toledo, for appellee.

FESS, Judge.

This is an appeal on questions of law from a judgment in the sum of $811.34 for property damage entered on a finding on behalf of the plaintiff by the court without the intervention of a jury.

At about 5:30 a. m. on the cold, snowy morning of November 23, 1945, and while it was still dark, plaintiff's truck loaded with baked goods was being operated by one of plaintiff's employees, in the course of its business, in a southerly direction on the County Line road. For a number of years the driver had driven over this route six days a week. He had good eyesight and hearing. The truck was painted white, operate quietly and was equipped with good brakes, tires and lights. It had only one door which was a collapsible folding door on the right hand side opposite the driver's seat. Only a glass window was on the left side of the driver--no door. For half a mile north of the crossing, between the highway and the crossing, there was an open filed which was completely free from any obstruction to the view of the tracks by a person approaching the crossing.

The driver testified that, as he approached the tracks, he stopped the truck about 30 feet north of the tracks, opened the door and looked for approaching trains. The tracks crossed the highway at an angle of some 45 degrees. Because of the angle and the location of the door toward the front of the truck, the driver could not see more than 160 or 165 feet up the track to his right, although, to obtain a better view, he had turned his truck slightly to his right and had leaned forward over the wheel to look. The driver said also that, as he started up to cross, he left the door open and proceeded to cross in slow gear at 10 to 15 miles per hour, when his truck was hit by the engine of the defendant. At the rate he was traveling he could have stopped within 12 or 13 feet. The distance from the north rail of the northbound track and the north rail of the southbound track was 12 feet 8 1/2 inches.

We quote from the driver's statement as follows:

'Q. Then when you started up and crossed the tracks, did you leave the door open or did you close it? A. I left it open.

'Q. You left it open. All right, now, what happened after you started up to go across the tracks? A. Well, that would be kind of hard to explain, but I almost got across, and that is the last I remember of.'

In answer to further questions, he said he looked at the time he opened the door and continued to watch after he started to cross. He said he saw no headlight and did not see the train at any time before it struck the truck. It may be observed that the driver's range of vision was limited to 165 feet by the obstruction to his view imposed by the narrow outlook of his truck to his right which would necessarily be reduced more and more as he approached the tracks. He was not asked whether he listened and did not testify directly that he did listen, but said he had opened the door and heard no bell or whistle. Two members of the crew testified that after the collision they went back to the crossing and the driver, who was then somewhat dazed, told them he heard the whistle but could not stop. Upon rebuttal, the driver said he did not remember making the remark.

Defendant's train consisted of a locomotive, tender and caboose. The engineer, fireman and brakeman who were riding in the cab of the engine each testified positively that the headlight was burning brightly, the automatic bell was ringing and the whistle was blown for the crossing. Each of them testified the train was traveling at 40 to 45 miles per hour. Although the emergency brakes were applied and the engine thrown into reverse, it was not stopped until a half of three quarters of a mile down the track. The engineer testified that if he had been pulling a train of cars he could have stopped within half the distance because of the additional braking power, and that the rails were wet at the time of the collision. None of the three members of the crew who claimed to have been watching down the track observed the truck until the collision.

In his conclusions of fact (denominated as findings of fact) the court found, in part, as follows:

1. As plaintiff's driver approached the tracks of defendant he stopped the truck, opened the truck door and looked and listened for approaching trains. There being no trains within sight or hearing, plaintiff's driver assumed he could safely cross the tracks and, continuing to look and listen, cautiously moved forward upon the tracks.

2. When he had almost completely crossed the tracks the truck was struck by a train, consisting only of a locomotive and tender, operated by defendant in a southeasterly direction on its tracks, and approaching plaintiff's driver from the right rear at an excessive rate of speed. Although the train crew testified that the speed of the train was only 45 miles per hour, the weather was extremely cold, the cab of the locomotive was cold, the crew was on its way home, the locomotive was not within seeing or hearing distance when plaintiff's driver stopped the truck, the locomotive proceeded approximately three-fourths of a mile after the collision before it could be stopped, and the court finds that the speed of the train was greatly in excess of 45 miles per hour.

3. At the time of the collision, although visibility was limited by darkness and snow and a strong wind blowing from the east toward the west carried the sound of the train away from the highway and defendant's tracks cross the highway at an acute angle, thus further limiting the view of the tracks by travelers on the highway, the defendant, with knowledge of these facts, operated its locomotive at an unreasonable highly dangerous and excessive rate of speed without keeping a proper lookout and without proper lighting and without warning plaintiff's driver or other travelers upon the highway of the approach of the locomotive, by bell, whistle, watchman gates, automatic flasher signals or other signal which could be seen or heard by them and although defendant was not then transporting any passengers or property and had no schedule to maintain.

4. Defendant failed to stop or slacken the speed of its train even though plaintiff's...