Patton v. Pennsylvania R. Co.
| Decision Date | 20 December 1939 |
| Docket Number | 27388. |
| Citation | 24 N.E.2d 597,136 Ohio St. 159 |
| Parties | PATTON v. PENNSYLVANIA R. CO. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The violation of a positive, specific and affirmative duty enjoined by statute or ordinance is negligence per se, or negligence as a matter of law. When a violation is conceded or established, the question whether the violater is guilty of negligence is not debatable, and the court must charge as a matter of law that the violater is guilty of negligence.
2. The fact that a defendant is chargeable with negligence per se or as a matter of law, does not preclude a defense of contributory negligence on the part of the plaintiff; and if negligence on the part of the plaintiff is established and shown to be a proximate cause of the injury of which he complains, he cannot recover.
3. The driver of a truck, 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 observation must be made at such time and place as to be effective for that purpose.
Detroit Toledo & Ironton R. Co. v. Rohrs, 114 Ohio St. 493, 151 N.E. 714, approved and followed.
4. The driver of a truck approaching a railroad grade crossing who is able, Before going upon such crossing and while in a place of safety, to see a train also approaching such crossing, but voluntarily continues to operate his truck toward the railroad tracks at a rate of speed which brings it and the train to the crossing at or near the same instant, resulting in a collision causing his death, is negligent as a matter of law.
Certified by Court of Appeals, Marion County.
Plaintiff appellee herein, brought this action as administratrix of the estate of Earl W. Patton to recover for the alleged wrongful death of her decedent, who was killed by a train operated by the defendant, The Pennsylvania Railroad Company, in the city of Bucyrus.
The main line of the Pennsylvania Railroad Company, from Pittsburgh to Chicago, passes through the city of Bucyrus in an easterly and westerly direction. Whetstone street, a much traveled thoroughfare in the city of Bucyrus, crosses the railroad at grade in a northerly and southerly direction in the eastern part of the city.
On the south side of the railroad, the street has a slight upgrade to the tracks. The crossing is equipped with an automatic electric signal bell located in the northeast quadrant of the crossing, and the bell was in an operating condition at the time of the accident which is the subject of this action. There is also located at this crossing, visible to those using the street, the usual crossing sign bearing in black letters on a white background the words 'railroad crossing, danger.'
At the time of the accident there was in force in the city of Bucyrus a city ordinance making it unlawful to operate any train, within the corporate limits, at a speed in excess of 25 miles per hour.
About six o'clock in the morning on November 10, 1933, the defendant company operated its passenger train, known as the Broadway Limited, in a westerly direction over Whetstone street crossing in the city of Bucyrus, at a speed of approximately 60 miles per hour. At the same time, plaintiff's decedent. Earl W. Patton, age 34 years, operating a motor truck loaded with coal, approached the railroad crossing on Whetstone street from the south. The testimony is that the truck was not running fast but sounded as if it were running in second or third gear. The train and truck so approaching the crossing reached it at the same instant, resulting in a collision which killed plaintiff's decedent instantly, demolished the truck, and carried parts of it down the track a distance of one-fourth of a mile. The engine of the train stopped approximately one-half mile west of the crossing.
Plaintiff's decedent, who was a coal trucker hauling coal from Coshocton to a point in Bucyrus north of the railroad, had used the crossing frequently and was familiar with it. The atmosphere was heavy and cloudy but not foggy, and lights could be seen a distance of a half mile or more. There was undisputed evidence that one approaching this crossing on Whetstone street from the south would have an unobstructed view of any train approaching from the east, depending upon the distance which he was south of the tracks, as follows: At a point 40 feet south of the south rail of the tracks there was a view to the east of 1100 feet; at a point 65 feet south of the south rail of the tracks there was a view to the east of 582 feet; and at a point 80 feet south of the south rail of the tracks there was a view to the east of 380 feet.
There were no eyewitnesses to this accident, but testimony as to the physical conditions immediately following the accident was given by residents living near the crossing who were awakened by the crash of the collision. The plaintiff claims there was negligence on the part of the defendant in the speed with which the train was operated, the claim being made that it was in violation of the city ordinance relating to speed. On the other hand, the defendant claims contributory negligence as a matter of law on the part of plaintiff's decedent in failing to heed the signal bell, crossing sign and other warnings, and in going upon the tracks in front of the approaching train which must have been in full view of plaintiff's decedent for some time before he reached the crossing.
In the trial court, there was a verdict and judgment for the plaintiff. Motions for a directed verdict, for judgment notwithstanding the verdict and for a new trial were overruled, and judgment was entered on the verdict. This judgment was affirmed by the Court of Appeals, one judge dissenting. The Court of Appeals, however, finding that its judgment in this case was in conflict with the judgment of the Court of Appeals of Lucas county in the case of Ballmer, Adm'x, v. Pennsylvania R. Co., 59 Ohio App. 221, 17 N.E.2d 435, certified the record in this case to this court for review and final determination.
Beer & Beer, of Bucyrus, for appellant.
Carter M. Patton and William P. Moloney, both of Marion, for appellee.
The principal error claimed by the defendant, appellant herein, is that the trial court erred in overruling its motions for a directed verdict and its motion for judgment notwithstanding the verdict. The only question of importance to be determined is whether, under the circumstances, plaintiff's decedent was guilty of contributory negligence, as a matter of law, in attempting to pass over the railroad crossing in question, and, if so, was his negligence in so doing the proximate cause of his death.
Since there were no eyewitnesses to the actual collision which resulted in the death of plaintiff's decedent, and as a consequence no testimony as to certain facts bearing upon the conduct of both plaintiff's decedent and the members of the crew operating the train at the time of the collision, certain presumptions arise in favor of both plaintiff's decedent and defendant, and must be given effect as though proven facts in the case. It is true that one witness whose home is on Whetstone street, north of and next to the crossing, and who was at home in bed but awake at the time of the accident, testified that he heard no whistle blow or no crossing bell ring and did not even hear the train until a second before the crash. But in view of the fact that there was credible testimony that the signal bell was in operation a few minutes later, and in view of the fact that the train, going 60 miles per hour, must have made considerable noise as it approached the crossing, it would seem that the witness in question was either not in a position to hear or was not giving attention. At best, his testimony was of a negative character and was scarcely sufficient to overcome the presumption of fact which the law supplies in the absence of evidence to the contrary.
It must be presumed, therefore, that plaintiff's decedent looked and listened for trains before he went upon the crossing and that he did so at a point where such observation and precaution would be effective for ...
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