Easterwood v. New York, C. & St. L. R. Co.

• Decision Date: 27 January 1958
• Citation: 162 N.E.2d 487,108 Ohio App. 425
• Parties: , 9 O.O.2d 392 EASTERWOOD, Appellee, v. NEW YORK, CHICAGO & ST. LOUIS R. CO., Appellant. *
• Court: Ohio Court of Appeals

Page 425

108 Ohio App. 425

162 N.E.2d 487, 9 O.O.2d 392

EASTERWOOD, Appellee, v. NEW YORK, CHICAGO & ST. LOUIS R. CO., Appellant. ^*

Court of Appeals of Ohio, Sandusky County.

Jan. 27, 1958.

Syllabus by the Court

1. Ordinarily, compliance with statutory provisions is all that is required of a railroad at an ordinary railroad crossing, but not all that may be required of the railroad in the way of warning signals if the crossing is unusually hazardous. (Third paragraph of the syllabus in Croke v. Chesapeake & Ohio Ry. Co., 86 Ohio App. 483, 93 N.E.2d 311, modified.)

2. A railroad is under no duty to provide extra-statutory warnings at a grade crossing, where such warnings are not required by any order of the Public Utilities Commission, if there is no substantial risk that a driver in the exercise of ordinary care may be unable to avoid collisions with a train operated over the crossing in compliance with statutory requirements.

3. The object of the provisions of Section 4955.33, Revised Code, is to warn travelers, unaware of a railroad crossing, of its existence. Such section requires but one sign with large and distinct letters placed on it to give notice of the proximity of the railroad.

4. To be inconsistent with the general verdict, it must plainly appear that answers to special interrogatories are irreconcilable, in a legal sense, with the general verdict, and an answer upon an issue erroneously submitted to the jury, must be disregarded by the reviewing court, except as an indication that the erroneous submission of the issue was prejudicial.

5. An answer to an interrogatory upon a claimed specification of negligence erroneously submitted to the jury is not to be regarded, in a legal sense or as a matter of law, as equivalent to a finding against the party having the burden to establish other act or acts of negligence. (Masters v. New York Cent. Rd. Co., 147 Ohio St. 293, 70 N.E.2d 898, distinguished.)

Leo W. Kenny, Fremont, and Williams, Eversman & Black, Toledo, for appellant.

Henry G. Stahl, Fremont, for appellee.

FESS, Judge.

This is an appeal on questions of law from a judgment entered upon a verdict for plaintiff in the sum of $15,000.

On the night of September 16, 1953, plaintiff was driving east on Napoleon Street in Fremont, Ohio. Defendant's single track, running from northeast to southwest, intersects Napoleon Street at an angle at grade. Defendant's engine and tender, engaged in backing movement southwest pulling two freight cars, and the automobile driven by plaintiff collided at the grade crossing with resultant injury to plaintiff. A single railway cross-buck sign was located from plaintiff's direction of approach on her left-hand side of the street west, or on the far side of the track. From a point 75 feet west of the crossing, plaintiff had an unobstructed view to the northeast from which direction the train was approaching the crossing at an obtuse angle and at a speed of from 10 to 15 miles per hour.

Although plaintiff had lived in the area for some years, she testified that she was unaware that she was about to cross a railroad track. It was a dark night, with no street lights at the intersection. There is the ususal conflict in the evidence with respect to the burning of the headlight on the tender of the engine ¹ and the sounding of the bell and whistle for the crossing.

The case was submitted to the jury on four specifications of negligence:

First: Failure to maintain at the crossing lights or flasher signals, watchmen or gates, should the jury find the crossing unusually hazardous.

Second: Failure to give a signal by bell, whistle or otherwise, as required by Section 4955.32, Revised Code.

Third: Failure to maintain a sign or signal on the south side of the crossing as required by Section 4955.33, Revised Code.

Fourth: Failure to keep a lookout for vehicles on Napoleon Street.

In response to interrogatories submitted by defendant, the jury found the plaintiff free from contributory negligence and found defendant negligent in the following particular:

'We feel that there was not sufficient warning at the south side of the Napoleon Street crossing west of the Nickel Plate tracks.'

In general, cases involving the question whether compliance by a railroad with statutory requirements as to warning signals measures the full duty of the company as to giving notice to travelers approaching the crossing of the imminence of the approach of a train, fall into three categories:

1. Those supporting the view that such compliance does not necessarily mark the railroad's entire duty and consequently a jury may base a finding of negligence upon the railroad's failure to give extra-statutory signals.

2. Those supporting the view that compliance with statutory provisions is all that is required at an ordinary railroad crossing, but not all that may be required of the railroad in the way of warning signals if the crossing is unusually dangerous.

3. Those supporting the view that, irrespective of the nature of the crossing, no more can be required of a railroad than fulfillment of applicable statutory requirements. 5 A.L.R.2d 115.

Ohio has adopted the intermediate view. Cleveland, C., C. & I. R. Co. v. Schneider, 45 Ohio St. 678, 694, 17 N.E. 321; New York, C. & St. L. R. Co. v. Kistler, 66 Ohio St. 326, 64 N.E. 130; Weaver v. Columbus, S. & H. R. Co., 76 Ohio St. 164, 176, 81 N.E. 180; Woodworth v. New York Cent. R. Co., 149 Ohio St. 543, 551, 80 N.E.2d 142; Hood v. New York, C. & St. L.R. Co., 166 Ohio St. 529, 144 N.E. 104; Croke v. Chesapeake & Ohio Ry. Co., 86 Ohio App. 483, 93 N.E.2d 311; Lacey v. New York Cent. R. Co., Ohio Com.Pl., 85 N.E.2d 540.

In the Croke and Lacey cases, an additional qualification was inadvertently added, namely: that before a question of additional precautions can be submitted to the jury there must be evidence that the crossing is unusually hazardous and that it is made so by the railroad company's use of it. The italicized portion of the principle is inaccurate and misleading and is not supported by the decisions of the Supreme Court herein cited. ²

The third paragraph of the syllabus in our decision in the Croke case is therefore modified by striking therefrom 'and that it has been made so by the railroad's use of it.'

With regard to a railroad's extra-statutory responsibility as a result of hazards at a crossing over which the railroad has no control, the Supreme Court has recently specifically held that a railroad is under no duty to provide extra-statutory warnings at a grade crossing, where such warnings are not required by any order of the Public Utilities Commission, if there is no substantial risk that a driver in the exercise of ordinary care may be unable to avoid colliding with a train that is being operated over the crossing in compliance with statutory requirements. Hood v. New York, C. & St. L.R. Co., supra, 166 Ohio St. 529, 144 N.E.2d 104. See, also, Woodworth v. New York Cent. R. Co., supra, 149 Ohio St. 543, 551, 80 N.E.2d 142; Tanzi v. New York Cent. R. Co., 155 Ohio St. 149, 154, 98 N.E.2d 39, 24 A.L.R.2d 1151; Gallagher v. New York Cent. Rd. Co., Court of Appeals, 6th District, unreported. In the instant case, the evidence tends to show that at certain periods the traffic over the crossing is heavy but that it was not unusually heavy at the time the collision occurred. There was no obstruction to plaintiff's view of the approaching train as she approached the crossing. Under such circumstances, there was presented no evidence that the crossing was unusually hazardous and the court erred in submitting that question to the jury. Cleveland, C., C. & I. Rd. Co. v. Schneider, supra, 45 Ohio St. 678, 17 N.E. 321; Weaver v. Columbus, S. & H. Ry. Co., supra, 76 Ohio St. 164, 81 N.E. 180; Reed v. Erie R. Co., 134 Ohio St. 31, 51 N.E.2d 637; Capelle v. Baltimore & Ohio Rd. Co., 136 Ohio St. 203, 24 N.E.2d 882; Woodworth v. New York Cent. R. Co., supra, 149 Ohio St. 543, 80 N.E.2d 142; Tanzi v. New York Cent. R. Co., supra, 155 Ohio St. 149, 98 N.E.2d 39; Biery v. Pennsylvania R. Co., 156 Ohio St. 75, 99 N.E.2d 895; Hood v. New York, C. & St. L. Rd. Co., supra 166 Ohio St. 529, 144 N.E.2d 104; Croke v. Chesapeake & Ohio Ry. Co., supra, 86 Ohio App. 483, 93 N.E.2d 311; Gallagher v. New York Cent. Rd. Co., supra; Lacey v. New York Cent. R. Co., supra, Ohio Com.Pl., 85 N.E.2d 540.

With regard to the submission of the claim that the railroad was negligent in failing to maintain a sign or signal on the south side of the crossing in compliance with the provisions of Section 4955.33, Revised Code, the court apparently was persuaded to do so by Baltimore & Ohio Rd. Co. v. Roudebush, 1930, 35 Ohio App. 471, 172 N.E.2d 559. See, also, Richter v. Wheeling & Lake Erie R. Co., 13 Ohio Law Abst. 333, upon which the conflict was certified in Reed v. Erie R. Co., supra; Loos v. Wheeling & Lake Erie R. Co., 60 Ohio App. 527, 22 N.E.2d 217, and Baltimore & Ohio R. Co. v. Reeves, 6 Cir., 10 F.2d 329, decided prior to Erie R. Co. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. In our opinion, the circumstances presented in the Roudebush and other cases are to be distinguished from those present in the instant case, and are covered by subsequent decisions of the Ohio Supreme Court.

Section 4955.33, Revised Code, is quite old, having been enacted in the horse and buggy age in 1852 (50 Ohio Laws, 278). The import of the language employed in the statute, as well as decisions referring to it, indicates that the statute requires but one sign with large and distinct letters placed on it to give notice of the proximity of the railroad. Reed v. Erie Rd. Co., supra, 134 Ohio St. 31, 35, 51 N.E.2d 637; Capelle v. Baltimore & Ohio R. Co., supra, 136 Ohio St. 203, 204, 24 N.E.2d 882; Cobb v. Bushey, 152 Ohio St. 336, 89 N.E.2d 466; Hood v. New York, C. & St. L. Rd. Co., supra, 166 Ohio St. 529, 533, 144 N.E.2d 104. Its object is to warn...