North v. Pennsylvania Rd. Co.
| Decision Date | 22 March 1967 |
| Docket Number | No. 40128,40128 |
| Citation | 224 N.E.2d 757,38 O.O.2d 410,9 Ohio St.2d 169 |
| Parties | , 38 O.O.2d 410 NORTH, Appellee, v. PENNSYLVANIA RD. CO. et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. The driver of a motor vehicle, about to pass over a railroad grade crossing on a public street, must exercise his senses of sight and hearing to discover whether trains are also about to pass over such crossing, and such exercise of the senses must be made at such time and place as to be effective for the purpose. (Syllabus of Boles v. Baltimore & Ohio Rd. Co., 168 Ohio St. 551, 156 N.E.2d 735, approved and followed.)
2. Appellate courts in reviewing orders allowing motions for summary judgment should require the appellant, upon whom the duty of demonstrating prejudicial error rests, to define the area in which a material factual dispute exists.
3. Appellate courts when reversing orders granting motions for summary judgment should state in the reversal order the material facts concerning which a genuine dispute exists.
The plaintiff while driving his automobile on a public highway collided with the diesel engine of the defendant Pennsylvania Railroad Company, which entered the highway from his left. The diesel engine was being operated on a spour line of the defendant Macomber, Inc., and was backing into the crossing, pulling a string of cars. The plaintiff's automobile collided with the rear corner of the diesel engine, that being, of course, the first part of the train to enter the crossing. Plaintiff's petition specifies that defendant Macomber was negligent in that it permitted a large growth of hedges, weeds and tall grass to exist in the vicinity of the crossing, obstructing the view of those who proceeded south on the highway, as did the plaintiff, and preventing such drivers from clearly seeing the movement of locomotives or trains. Additionally, the plaintiff specifies that there were no light signals or warnings of any kind on the property or given by those operating the train to warn those traveling south on this highway that there was a spur at that point and that an engine was about to enter the crossing. Each of the defendants by answer denies that it was negligent and each affirmatively alleges that the accident and the injuries to the plaintiff occurred solely as a result of the plaintiff's negligence.
Counsel for defendants then took, and filed, a deposition of the plaintiff-driver which disclosed quite clearly that the plaintiff had prior knowledge of the existence of the crossing, having crossed it many times before. This deposition disclosed that plaintiff first saw the train entering the crossing from his left when he was some 80 to 90 feet back from the crossing and was going 30 to 35 miles per hour. The trial court sustained the motions of the defendants for summary judgment and specifically found that the plaintiff was guilty of contributory negligence so as to render immaterial all issues of fact concerning the negligence of the defendants as charged in plaintiff's petition.
The Court of Appeals held that there was a material issue of fact concerning which there was a genuine dispute and reversed the judgment and remanded the cause.
In so doing the Court of Appeals relied upon Woods v. Brown's Bakery, 171 Ohio St. 383, 171 N.E.2d 496. That case discusses the application of the assured-clear-distance rule (Section 4511.21, Revised Code). It concerns the situations in which the rule depends for its applicability upon a factual determination of the point at which the object with which collision occurred entered into the plaintiff's path or line of travel.
The Court of Appeals also cited White v. Ohio Power Co., 171 Ohio St. 148, 168 N.E.2d 314, apparently for the purpose of showing that, if reasonable minds can disagree as to whether it was the negligence of the defendant or the negligence of the plaintiff which was the proximate cause of an accident claimed to have resulted in injuries to the plaintiff, then that question is one for the jury.
The cause was admitted to this court upon the allowance of a motion to certify the record.
William S. Georges, Canton, for appellee.
Amerman, Burt, Shadrach, McHenry & Jones, Hart & Hart and Ian Bruce...
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