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

• Decision Date: 10 July 1957
• Docket Number: No. 34905,34905
• Citation: 144 N.E.2d 104,166 Ohio St. 529,3 O.O.2d 12
• Parties: , 3 O.O.2d 12 HOOD, a Minor, Appellee, v. NEW YORK, CHICAGO & ST. LOUIS R. CO., Appellant.
• Court: Ohio Supreme Court

Page 529

166 Ohio St. 529

144 N.E.2d 104, 3 O.O.2d 12

HOOD, a Minor, Appellee, v. NEW YORK, CHICAGO & ST. LOUIS R. CO., Appellant.

No. 34905.

Supreme Court of Ohio.

July 10, 1957.

Syllabus by the Court.

1. Where the driver of an automobile testifies that he looked and listened for a train at a place where such a driver should have been able to hear a bell and whistle of and see a headlight on an approaching train, his negative testimony that he heard no bell or whistle and saw no headlight may be given some weight, notwithstanding positive testimony that the bell was rung, the whistle was blown and the headlight was on.

2. In passing upon a defendant's motion for a directed verdict, the trial court is required to construe the evidence most strongly in plaintiff's favor. (Paragraph one of the syllabus of Tanzi v. New York Central R. Co., 155 Ohio St. 149, 98 N.E.2d 39, 24 A.L.R.2d 1151, approved and followed.)

3. Whether the testimony of a witness is false or mistaken is a question for the jury or other trier of the facts. (Paragraph two of the syllabus of Tanzi v. New York Central R. Co., 155 Ohio St. 149, 98 N.E.2d 39, 24 A.L.R.2d 1151, approved and followed.)

4. It is error to charge a jury with respect to an issue raised by neither the pleadings nor the evidence.

5. It is error to charge a jury that it may find that a defendant railroad failed to provide the statutory cross-buck sign and that such a failure would be negligence per se, where that sign was admittedly in place.

6. A railroad is under no duty to provide extrastatutory 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.

7. Where reasonable minds cannot conclude that there is such a substantial risk, it is error to permit a jury to consider whether a railroad had a duty to provide extrastatutory warnings.

8. The question whether an order of the Public Utilities Commission requiring extrastatutory warnings at a railroad grade crossing is reasonable and lawful is not the same as the question whether such warnings are required in the absence of such an order.

9. In an action against a railroad to recover for injuries received by a passenger in an automobile in a grade crossing collision, it is generally error to permit the plaintiff to introduce evidence as to (a) the existence of correspondence indicating efforts to have flasher lights installed at the crossing, (b) the nature and extent of injuries received by other passengers in the automobile, or (c) the conditions of the headlights on defendant's locomotives passing over the crossing on occasions from three to seven years before.

Plaintiff instituted this action against defendant to recover for personal injuries sustained in February 1953 in a collision between an automobile in which he was riding and one of defendant's trains. At the time of the collision there were seven teenagers in the automobile. Four of them, including the driver and the plaintiff, were in the front seat.

The collision occurred about 8:15 p. m. where Depot Road, a township road running in a general northerly and southerly direction between U. S. route 20 and Ohio route 84 in Ashtabula County, crosses the two tracks of defendant's main line which runs in a general easterly and westerly direction.

The jury returned a verdict for the plaintiff for $65,000, for which amount judgment was rendered.

On appeal to the Court of Appeals, that court found that the amount of the verdict was 'excessive to the extent of fifteen thousand ($15,000) dollars,' but that the 'verdict was not given under the influence of passion or prejudice,' and it affirmed the judgment after plaintiff had consented to a remittitur of $15,000.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of defendant's motion to certify the record.

Williams, Eversman & Black, Toledo, and Dunlavy, Hogue & Mahoney, Ashtabula, for appellant.

Pontius & Barsky and Nazor & Nazor, Ashtabula, for appellee.

TAFT, Judge.

Defendant contends that there was no evidence of defendant's negligence and that therefore the trial court erred in overruling the motion to direct a verdict for the defendant.

The only one in the automobile who had any recollection of what occurred immediately prior to the collision was the driver. Two were killed and the other five were seriously injured. The driver testified that he stopped about 20 feet from the tracks and looked and listened for a train, that he did not hear any bell or any whistle (see Section 4955.32, Revised Code) or the noise of a train and did not see any light (see Section 4963.25, Revised Code). Since the train had 18 cars loaded with iron ore, four empty cars, a caboose, a steam locomotive and its tender and was only traveling between 25 and 35 miles per hour, it is difficult to comprehend how the driver could fail to hear it if he did effectively listen for a train. Cf. Cobb v. Bushey, 152 Ohio St. 336, 89 N.E.2d 466. Also, his testimony is contradicted by that of the engineer and of the fireman that the bell was rung, the whistle was blown and the headlight was burning.

In arguing that the driver's negative testimony, that he did not hear a bell or a whistle or see a light, should be given no weight as against the positive testimony that the bell was rung, the whistle was blown, and the headlight was on, defendant relies on Hicks v. Baltimore & Ohio R. Co., 160 Ohio St. 307, 116 N.E.2d 307, and Clark v. Baltimore & O. R. Co., 6 Cir., 196 F.2d 206, 211. However, in those cases, the witnesses whose testimony as to not hearing was given no weight were either not situated where they could hear or were not listening. Here, the driver testified that he was looking and listening for the train at a place where he should have been able to hear a bell or whistle of and see any headlight on an approaching train.

In Tanzi v. New York Central R. Co., 155 Ohio St. 149, 98 N.E.2d 39, 24 A.L.R.2d 1151, the syllabus reads in part:

'1. In passing upon a defendant's motion for a directed verdict, the trial court is required to construe the evidence most strongly in plaintiff's favor. (Hamden Lodge [No. 517, I.O.O.F.] v. Ohio Fuel Gas Co., 127 Ohio St. 469 , approved and followed.)

'2. Whether the testimony of a witness or of a party is false or mistaken is a question for the jury or other trier of the facts.'

If the jury believed the foregoing testimony of the driver as to looking and listening and not seeing or hearing, then it could reasonably have determined that defendant's negligence was a proximate cause of the collision. Hence, without considering whether there was any other substantial evidence tending to prove defendant's negligence, we conclude that there was no error in overruling the motion to direct a verdict for defendant.

The trial court charged the jury in part as follows:

'At the time of the accident * * * there was another section of the General Code which was in full force and effect at the time, applicable to railroads, General Code 8852 [Section 4955. 33, Revised Code], which reads as follows:

"At all points where its road crosses a public road at a common grade, each company shall erect a sign, with large and distinct letters placed thereon, to give notice of the proximity of the railroad, and warn persons to be on the lookout for the locomotive.'

'A company which neglects or refuses to comply with this provision shall be guilty of negligence per se, and you are instructed that if you find by a preponderance of the evidence that this statutory signal or provision was not complied with, the failure to so comply with said section of the General Code is negligence per se, that is, negligence as a matter of law, and if such negligence was a proximate cause of the accident and resulting damage to plaintiff, plaintiff could recover herein unless you further find that plaintiff, himself, was guilty of contributory negligence.'

Admittedly such a sign, herein referred to as the statutory cross-buck sign, had been erected and was in place at this crossing at the time of the collision. Although conceding that he offered no evidence tending to show that there was no such sign and made no such contention, plaintiff argues that one of his 13 specifications of negligence was broad enough to have permitted introduction of such evidence. However, even the words of that specification, relied upon by plaintiff in so arguing and reading, 'an automatic warning bell or other signaling device to warn of the approach of trains,' could not reasonably describe a mere statutory cross-buck sign. Hence, we have a situation where the trial court erroneously introduced into the charge instructions upon an issue not raised by the pleadings or the evidence. See Cincinnati Traction Co. v. Forrest, 73 Ohio St. 1, 75 N.E. 818; Cincinnati Traction Co. v. Stephens, Admr., 75 Ohio St. 171, 79 N.E. 235; and Toledo Railways & Light Co. v. Campbell, 79 Ohio St. 441, 87 N.E. 1142. This was not, as plaintiff suggests, merely a charge telling the jury what the statute required at this crossing. The jury was told in effect that it might find that defendant had failed to provide the statutory cross-buck sign, even though that sign was admittedly in place, and that such a failure would be negligence per se or negligence as a matter of law.

Admittedly, the Public Utilities Commission of Ohio had

not made any order requiring a 'gate, automatic alarm bell, or other mechanical device' or a 'flagman' at this crossing. See Section 4907.47, Revised Code. However, the jury was told in effect that defendant would be under a duty to provide extrastatutory warnings if the jury believed such warnings to be 'necessary...