Fairchild v. Lake Shore Electric Railway Company

• Decision Date: 11 May 1920
• Docket Number: 16369
• Citation: Fairchild v. Lake Shore Electric Railway Company, 128 N.E. 168, 101 Ohio St. 261 (Ohio 1920)
• Parties: Fairchild v. Lake Shore Electric Railway Co.
• Court: Ohio Supreme Court

128 N.E. 168

101 Ohio St. 261

Fairchild v. Lake Shore Electric Railway Co.

No. 16369

Supreme Court of Ohio

May 11, 1920

Public highways - Use by public and grantee of franchise - Reciprocal rights, duties and obligations - Exercise of care - Depositions - Right to take pending error proceedings - Taxing expense as costs.

1. The grant of authority to construct an interurban railway in a public highway does not confer on the company the exclusive use of the portion of the highway on which the track is constructed.

2. In such situation the rights of the public are not inferior to those of the company. The company and the public have mutual obligations of care in the use, to be determined with due regard to the circumstances in each case and to the necessity of the car confining its passage to the tracks and its inability to turn out to avoid injury. It is the duty of the company to equip and operate its cars with such appliances lights and warnings, and under such proper control, as ordinary care under the circumstances requires.

3. An existing as distinguished from a potential issue of fact in a trial court is not necessary in order that a party may exercise the right given by Section 11526, General Code, to take testimony by deposition at any time after service of summons on.the defendant. Either party may take depositions while error proceedings are pending in a reviewing court to reverse the judgment of the trial court. If such depositions are not used, the expense of taking them cannot he taxed in the costs of the case.

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The plaintiff in error brought suit against the Lake Shore Electric Railway Company in the common pleas of Lucas to recover damages for personal injuries alleged to have been sustained by the negligence of the company. In the amended petition upon which the case was tried the plaintiff alleged the operation of an electric road in Sandusky county west of Fremont; that the defendant then had and still has its tracks and line of railroad upon a portion of the public highway which before construction of the railroad was occupied and used by the public as a highway for travel; that the line of the defendant company encroached upon the highway and thereby made the road hazardous and dangerous for vehicle travel, especially in the night time that the elevated, graded and macadamized part of the highway is much traveled and exclusively used for travel in the winter season, and that the only part that could at that time be used on account of the wet and muddy condition of the low and ungraded parts was narrow and out of repair, contained holes in many places, particularly at the point where the plaintiff received his injuries, and that wagons, vehicles and buggies were compelled to travel near to the defendant's track because of these holes and depressions and be in danger of being struck by the cars thereon, all of which was known to the defendant; that the 'defendant operated its cars in the night time, and at irregular times and without a schedule for the information of the public, and on the night of the injury to the plaintiff at a high and dangerous rate of speed, to-wit, about fifty miles per hour that on the night of January 11,1913, a car operated without a lighted headlight approached the plaintiff while he was driving along the highway westward, near the village of Hessville, without the knowledge of the plaintiff, and recklessly and negli- gently approached plaintiff's rig from the rear, at a high and dangerOus rate of speed, while plaintiff was driving near to the car tracks, and after the defendant saw or should have seen the plaintiff's rig close to the track; that plaintiff before he drove near the tracks of defendant turned and looked back along the track and listened for cars, but neither saw nor heard them; and that defendant carelessly and negligently omitted while approaching plaintiff to give him any signal warning or notice by gong, whistle or light, by reason of which negligent act in not stopping or slowing down its car, after seeing the position of the plaintiff's buggy in the tracks, as aforesaid, when it had plenty of time to do so, defendant struck plaintiff's buggy, breaking and destroying the same and seriously injuring the plaintiff in the respects which are specifically set forth in the petition.

The amended petition further averred that the plaintiff looked at a point about one hundred feet east, more or less, from the place where the defendant's car struck his buggy, eastward along the defendant's track, and listened for cars, but saw and heard nothing.

The answer of the defendant denied any negligence on its part and averred that the plaintiff was entirely familiar with the location of the tracks of the company on the highway and shortly before the time of the injury carelessly and negligently drove his horse and carriage close to, upon and Over the rails of the tracks, without exercising ordinary care, or any care, for his own safety, or to ascertain the approach Of defendant's car; and that the defendant had erected its tracks under authority of the duly authorized public bodies.

The reply of the plaintiff was a general denial of the allegations of the answer save and except the admissions therein.

The cause was tried to a jury, which rendered a verdict in favor of the plaintiff. The judgment which was entered on this verdict by the trial court was reversed by the Court of appeals, and, in this proceeding, the plaintiff seeks to reverse the judgment of the court of appeals and affirm that of the common pleas.

Messrs. Marshall & Fraser and Mr. D. B. Love, for plaintiff in error.

Messrs. Tyler, Northup & McMahon, for defendant in error.

JOHNSON J. By its entry it is shown that the court of appeals reversed the judgment of the trial court for three reasons. They will be examined in their order.

I. That the court erred in giving to the jury before argument charge No. 2, requested by the plaintiff, viz., "You are instructed that if the preponderance of the evidence shows that at and shortly before the time of the collision, the headlight on this car was not in operation, you are at liberty, if you so determine, to find that the absence of the headlight constituted negligence on the part of the defendant," and in thereafter charging the jury. in the general charge: "The burden is upon the plaintiff to show that the defendant did not exercise ordinary care in operating its car; to-wit, was the headlight lighted or unlighted? Did the headlight shine at and preceding the time of the accident? The burden is upon the plaintiff to show that it did not shine. If it did not shine, and the defendant operated its car without a light, was that operation the exerCise of ordinary care under the circumstances?"

It is insisted that by this language the court indicated to the jury that the defendant would not be exercising ordinary care in the operation of the car if the headlight was not lighted, and that it unduly emphasized the importance of the issue as to whether the headlight was burning or not.

The testimony showed that the night on which the accident occurred was very dark; that the car was not running on a regular schedule; and that its speed at the time was very rapid. It must also be noted that it was running upon a public highway where it was the duty of the company to operate its car with reference to the rights of others rightfully traveling on the highway; that the duty to use care in such circumstances is reciprocal. Neither the company nor the traveler has any exclusive rights in the highway and each is under obligation to use that care which the circumstances would dictate to ordinarily prudent and careful persons.

We think it clear that in the special charge it is left to the jury to determine whether the absence of the headlight constituted negligence under the circumstances, if they should find by the preponderance of the evidence that it was not in operation. And, in the portion of the general charge quoted, substantially the same proposition is laid down and the same instruction given. The jury must have been impressed-it is apparent from the record- that the question of the headlight was an important feature of the case. The defendant had itself emphasized the importance of this feature by its request to the court to give the following charge, which the court gave: "No matter what you may find with respect to any other issue in this case, you must return a verdict for the defendant unless you find that there was no headlight burning on the defendant's car at the time it was approaching the point where the collision occurred." The court left it to the jury to determine whether the absence of the headlight showed the exercise Of ordinary care under the circumstances which the testimony disclosed.

The court at the request of the defendant submitted interrogatories to the jury touching the questions whether an electric sign and a classification lamp were upon the defendant's car at the time of the injury, whether the headlight on the car was lighted while it was running over the thousand feet of track immediately east of the accident, and whether the plaintiff's buggy at the time that the collision occurred was resting crosswise of the defendant's tracks. The first two interrogatories the jury answered in the affirmative and the last two in the negative. These answers manifest a full and intelligent understanding by the jury of the controlling issues, and as to where the preponderance of the evidence was on these issues.

II. The court of appeals was of the opinion that the trial court also erred in the following portion of...