Emrich v. New York Cent. System

• Decision Date: 24 November 1959
• Parties: , 14 O.O.2d 427 EMRICH, Adm'r, Appellee, v. NEW YORK CENTRAL SYSTEM, Appellant. * (Two cases).
• Court: Ohio Court of Appeals

Page 425

111 Ohio App. 425

172 N.E.2d 470, 14 O.O.2d 427

EMRICH, Adm'r, Appellee, v. NEW YORK CENTRAL SYSTEM, Appellant. ^* (Two cases).

Court of Appeals of Ohio, Second District, Madison County.

Nov. 24, 1959.

Syllabus by the Court.

1. In a wrongful death action arising from a grade-crossing collision within a municipality, where the tracks of two different railroads intersect the same street at grade crossings approximately 300 feet apart, flasher signals at both grade crossing are controlled by separate switches in a railroad tower jointly operated by both railroads, the tower operator testifies that, upon the approach of the train, he threw the proper switch to flash the signal at the crossing where the collision occurred and the evidence is in conflict as to whether the flasher signal at the particular crossing involved was in operation, evidence that the flasher signal at the nearby grade crossing of the other railroad was in operation, and that the signal at the crossing being approached by the train was dark, is admissible on the issue of defendant's negligence in the operation of the flasher signal and to contradict the testimony of the tower operator that he threw the proper switch to operate the appropriate signal.

2. In such case, the nonoperation of a flasher signal at the particular grade crossing involved and the distracting operation of others at a nearby crossing present questions for the determination of the jury, and the overruling of defendant's motions for a directed verdict and for judgment non obstante veredicto is not erroneous.

3. A railroad, voluntarily operating flasher signals at a grade crossing when not required to do so by law, is required to exercise ordinary care in the operation of such signals.

4. The improper operation of flasher warning signals at a railroad grade crossing is not negligence per se, where such signals are not required by law but were installed and operated by the railroad voluntarily.

5. A general verdict may not be set aside because of special findings in answer to interrogatories unless such findings are irreconcilable with the general verdict.

Jackman, Nichols & Grubbs, London, for appellant.

Richmond & Richmond, London, for appellee.

CRAWFORD, Judge.

Defendant, The New York Central System, appeals from a judgment of $40,000 for the wrongful death of plaintiff's decedent, Betty Emrich, which occurred on November 20, 1957, in a collision between defendant's westbound train and an automobile being driven southwardly by the decedent on South Main Street in the city of London, Ohio.

Plaintiff, Arthur Emrich, administrator of the estate of Betty Emrich, deceased, has also appealed, in the second case before us, but only as an alternative method of presenting his contentions.

The petition alleges three negligent acts or omissions: (1) That defendant's train was traveling at a speed of 40 to 50 miles per hour; (2) that no whistle or bell was sounded on the locomotive; and (3) that the flasher signals at the crossing were not in operation.

The first defense in the answer admits the existence of defendant's tracks over South Main Street and the flasher signals erected there, but denies all other allegations of the petition. A second defense charges the decedent with driving upon a crossing without looking or listening and with failing to heed warning signals at the crossing and on the locomotive.

The reply is a general denial.

There are four assignments of error. The first pertains to (a) The refusal of the court to strike from the petition references to lights and bells at locations other than the New York Central crossing at South Main Street, (b) the overruling of defendant's objection to testimony in support thereof and (c) the court's removing these items from the jury at the close of the trial, when, it is claimed, the withdrawal was too late to be effective.

The second assignment concerns the overruling of defendant's motions, timely made, for a directed verdict, and its motion for judgment non obstante veredicto.

The third is directed to the overruling of defendant's motion for a new trial.

The fourth assignment complains of the refusal of the court to strike an interrogatory on defendant's motion.

No effective ordinance regulating speed was introduced. Whether the speed of the train constituted negligence, therefore, must be determined by common-law rules. The evidence indicated that as the train approached London it was traveling 75 miles per hour, and that when it crossed South Main Street it was going approximately 47 miles per hour. Decedent's speed was variously estimated at from 10 to 30 miles per hour. The evidence was in conflict as to whether the locomotive bell and whistle were being sounded, and as to whether the crossing flasher signal was operating. There was sufficient evidence to sustain a finding of defendant's negligence proximately causing the collision.

Much of the argument made before us is concentrated upon the issue of decedent's contributory negligence. Further facts must be noted in this connection.

Walnut Street, South Main Street and Oak Street in the city of London are all parallel and are located at intervals of approximately 350 to 400 feet from each other. They run generally northwest and southeast. Walnut Street is farthest to the northeast, Oak Street is farthest to the southwest.

The tracks of the Pennsylvania Railroad run generally northeast and southwest, intersecting the three streets named at approximately right angles. The tracks of the defendant, running just slightly to the northwest and southeast, also intersect the same streets, and cross the Pennsylvania tracks immediately east of Walnut Street. All the crossings are at grade. Where the tracks of the two railroads cross South Main Street defendant's tracks are north of the Pennsylvania tracks a distance variously estimated at 240 to 300 feet.

The crossing of defendant's tracks over South Main Street forms an acute angle to the northwest and an obtuse angle to the northeast. Both these angles are occupied by business buildings up to within a short distance of the tracks.

Defendant produced evidence that its tracks were visible for considerable distances to the east from various points north of its tracks on South Main Street. Plaintiff claims that these visible distances were reduced for decedent because of her position back of the wheel of the automobile.

Plaintiff's witness, Gorman Clark, London police chief, testified:

'There are buildings on the right and buildings on the left, traveling south. You have to pull pretty well onto the track to see to the right, and the view is not too good to the left.'

The visibility of decedent's automobile from the train must have borne some relationship to visibility in the opposite direction. And defendant's engineer, John Hammond, testified that although he kept a steady lookout ahead from the right-hand side of the cab of defendant's Diesel locomotive, which was pulling the train in question, he did not see decedent's automobile immediately before the collision.

Just east of Walnut Street and north of the intersection of the railroads there is a signal tower, maintained and operated by both railroads. The operator stationed there is employed by both. Among other duties he manually operates switches which control all blinker and bell signals of both railroads within the city of London.

At each of the four railroad crossings on South Main and Oak Streets there is a standard carrying a bell and blinker signals, also a reflector sign, reading 'Stop on red signal,' and a cross-buck sign, with the words, 'Railroad crossing.' There standards for the crossings of the two railroads on South Main Street are located in the middle of the street and near the respective crossings.

The operator of the signal tower, Charles Vickroy, said that as defendant's train approached from the east on the day...