D., T. & I. Rd. Co. v. Rohrs

• Decision Date: 13 April 1926
• Docket Number: 19113
• Citation: 114 Ohio St. 493,151 N.E. 714
• Parties: The Detroit, Toledo & Ironton Rd. Co. v. Rohrs.
• Court: Ohio Supreme Court

151 N.E. 714

114 Ohio St. 493

The Detroit, Toledo & Ironton Rd. Co. v. Rohrs.

No. 19113

Supreme Court of Ohio

April 13, 1926

Negligence - Duty to look and listen when approaching railroad grade crossing - Vehicle driver, having unobstructed view, failing to see train, negligent, when - Driver cannot recover damages, although testifying he looked and listened, when.

1. It is the duty of a driver of a vehicle upon a public highway when approaching a grade crossing of a steam railroad to both look and listen for approaching trains and to do so at such time and place and in such manner as will make the looking and listening effective.

2. When such driver upon the highway has a clear and unobstructed view each way along a straight railroad track when near to and before going upon such crossing, and fails, in broad daylight, to see an engine or train which is then very close to the highway, and so near thereto as that, if the driver of the vehicle goes ahead, a collision will be inevitable, such driver is guilty of negligence in

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Railroads 33 Cyc. p. 1012;

Id., p 1004.

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going upon the crossing at that time and under those conditions.

3. A driver of a vehicle upon a highway cannot recover damages for an injury received in a collision at a steam railroad crossing, even though he testifies that he looked and listened and neither saw nor heard anything approaching on the railroad track before going upon the crossing, when the only conclusion that can reasonably be reached upon the evidence is that there is no doubt that had he looked he must have seen the danger, that was immediately at hand, in time to avoid injury.

The facts are stated in the opinion.

Messrs F. S. & J. M. Ham, and Messrs. Knepper & Wilcox, for plaintiff in error.

Mr. L S. Ward and Mr. D. B. Johnson, for defendant in error.

KINKADE J.

This is an action for damages resulting from negligence, personal injuries inflicted, and personal property destroyed by the same negligent conduct. Amount sought to be recovered, $3,590.

An automobile and a railroad locomotive collided at a right angle grade crossing. The highway ran east and west and the railroad north and south. The automobile was a Ford touring car, with side curtains buttoned in place. The car was driven by its owner, the defendant in error, Rohrs. Six children were in the car, one in the front seat ______________

Id., p. 1006. ______________ with the driver, and the other five in the back part of the car. The car had started from a point not over 100 feet west of the crossing, and was driven toward the crossing in low gear and at a speed not exceeding 5 or 6 miles an hour, and, after passing a point 20 feet west of the railroad track, the speed of the car was slowed down. The locomotive was backing north toward the crossing at a speed of not to exceed 8 miles an hour, and was pulling a box car. The employes of the railroad company in charge of the engine and car were performing a switching operation, and were intending to pull the car just about onto the highway crossing, which would place the engine slightly to the north of the crossing and bring the south end of the car north of the, switch point of a side track that was near the south side of the highway; the intention of the engineer being to there reverse the engine and shove the box car to the south on a side track. In order to accomplish the purpose in hand, steam had been shut off from the engine, and it was running of its own momentum just prior to the accident, and, for the purpose of checking the engine to a lower speed, a service application of the air brakes had been made just before the collision occurred. A little prior to the collision the emergency power of brakes was applied.

Sixty-eight feet south of the highway and fifteen feet west of the railroad track was a small hand car house which obscured the view of a traveler going east on the highway toward the railroad track for a few moments of time while passing a point a little more than 20 feet west of the railroad track on the highway. From any point on the highway west of the crossing the railroad track could be seen for 68 feet south of the crossing. After passing this 20-foot point, there was nothing to the south to obscure the view of the traveler on the highway coming from the west, and he could see plainly past the hand car house, immediately after passing the 20-foot point on the highway west of the crossing, to a point at least 243 feet to the south. The engine was a local freight engine that passed this point twice every day in the handling of local freight, and very frequently did switching in this vicinity, the same in character as was taking place this day.

The accident occurred at 8 o'clock in the morning on the 8th day of October, 1923. The weather was clear, and no feature of the weather in any degree contributed to produce the accident that happened. The owner of the automobile had lived for more than 3 years within about 100 feet of this crossing, where he carried on the business of a general store, with living quarters in the same building. He was thoroughly familiar with all the surroundings, and received freight at this point, carried on this same local freight, while running his store, two or three times a week. Before operating the store he had lived on a farm. He testified that when he left the store building to drive toward this crossing he looked both ways, north and south, for the approach of trains. Before reaching the point opposite the hand car house, he could see west of the hand car house to a very considerable distance to the south on the railroad tracks. He testified that he kept up a continual looking to the north and to the south for railroad trains as he drove eastward on the highway, and that he particularly looked to the south as well as to the north after passing the point on the highway 20 feet west from the track, at which time his line of vision south would fall east of the hand car house, so that that building in no wise further obstructed his view. He also testified that he listened for the coming of trains, and that he heard no signals given. One of the occupants of the car testified that Rohrs looked to the south after he passed the 20-foot point mentioned.

It is entirely clear from the record that the automobile was traveling at a very low speed, at no time exceeding 5 or 6 miles an hour, and it is equally clear that the locomotive pulling the box car was backing north at a speed not to exceed 8 miles an hour, and probably not more than half of that at the time of the collision. The driver of the automobile, although saying that he had kept up a continual observation to the north and to the south as he drove toward the crossing, stated that he did not see the locomotive until it was just ready to strike the machine. He was asked and answered these questions:

"Q. At the time you were 15 or 20 feet from the track, what did you do? A. Looked, watched both ways.

Q. Did you do anything else? A. Yes, sir.

"Q. What did you do? A. Slowed a little down, then I went on.

"Q. State whether or not you listened? A. Yes, sir.

"Q. Did you hear a locomotive bell or a whistler? A. No, sir.

"Q. Did you hear either? A. No, sir.

"Q. At the time your front wheels struck the crossing, what occurred? A. The train hit me just as I seen it; just took me just that quick; she come into us.

"Q. How far was the car from your automobile at the time you first noticed it? A. She was right on to us; just as quick as I seen it she hit us; we was gone down the line."

He testified that the locomotive...