Payne v. Vance, No. 16893.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: MARSHALL
• Citation: 103 Ohio St. 59,133 N.E. 85
• Parties: PAYNE, Director General of Railroads, v. VANCE.
• Decision Date: 05 July 1921
• Docket Number: No. 16893.

103 Ohio St. 59
133 N.E. 85

PAYNE, Director General of Railroads,
v.
VANCE.

No. 16893.

Supreme Court of Ohio.

July 5, 1921.

Error to Court of Appeals, Gallia County.

Action by one Vance against John Barton Payne, Director General of Railroads. Verdict for plaintiff, and defendant's motion for judgment notwithstanding verdict was overruled, and judgment entered for plaintiff, which was afterward affirmed by the Court of Appeals, and the defendant brings error. Judgment of Court of Appeals and court of common pleas reversed, and cause remanded to the court of common pleas for further proceedings in accordance with the opinion.

The petition filed in the court of common pleas of Gallia county alleged that the defendant, the Director General of Railroads, was on the 15th day of August, 1918, operating the Hocking Valley Railway Company, one line of which railway extended from Gallipolis, in Gallia county, Ohio, eastwardly; that the city of Gallipolis has a population of 6,000 inhabitants, and that within said city and near the eastern corporation line of the city the Hocking Valley railway line extended over and across a certain public highway at and near what is known as ‘Vanden's point’; that the highway at said crossing was much traveled and greatly used by the traveling public by means of carriages, wagons, automobiles, automobile trucks, and other vehicles, as well as by pedestrians, said highway being known as the Gallia and Jackson Inter-County state highway; that the approach from the east and southeast on said highway to said crossing was obstructed by a high bank of earth and rock, and a hill, and growing trees on said bank and hill, upon a part of the right of way of the Hocking Valley Railway Company and lands of others, into which bank and hill the railroad company had partially excavated as a place for its railroad track; that persons upon said highway approaching said crossing from the south could not see trains approaching from the east and north until such trains were near and within less than 80 feet of the crossing, thereby preventing travelers from hearing and seeing trains on said railroad approaching the crossing from the north until trains were within less than 80 feet of the crossing; and that plaintiff did not know of those facts on said 15th day of August, 1918.

The petition further stated that on said date, at about half past 12 o'clock, after noon, plaintiff was traveling northwesterly along said highway, approaching said crossing in an automobile truck, and that upon said crossing came in collision with a passenger train which he alleges was being driven negligently, recklessly, wantonly, and willfully at a speed of more than 30 miles per hour without having a watchman stationed at the crossing and without any gates, gongs, bells, or other signaling devices of any character to warn the traveling public, including the plaintiff, of the approach of the train, and omitting to sound the whistle or ring the bell or give any other signal of the approaching train.

It was further claimed that ordinary care and prudence would have required a speed of approximately 4 miles per hour.

It was further alleged that without any fault on the part of plaintiff, and by reason of the collision, the automobile truck was overturned, and plaintiff was thrown against a post with such violence as to render serious and permanent injuries.

The answer admitted the absence of watchmen, gates, barriers, gongs, bells, or signals at the crossing; admitted the collision and the damages to the automobile, and injuries to the person of the plaintiff; and alleged that such injuries as were suffered by the plaintiff to his person and property resulted solely from the plaintiff's own negligence in failing to look or listen for an approaching train when approaching the crossing, and in deliberately driving the automobile truck upon the railroad track against the locomotive of said train. It further alleged that by the exercise of ordinary and proper care the plaintiff could have seen the approaching train, could have stopped the truck, and could have avoided the collision, and that the plaintiff's negligence was the direct and proximate cause of any injury suffered or received by him at said time and place.

The obstruction of the view of trains approaching from the north and east of travelers approaching the crossing from the south and east, and the distance at which the engineer on the locomotive and travelers upon the highway can see each other as the crossing is approached from those directions, are clearly settled by the stipulation of counsel, appearing on page 62 of the record as follows:

‘It is admitted by counsel for the plaintiff and defendant that a person standing in the center of the brick pavement 41 feet east of the rail can see a point 13 1/2 feet above the railroad track 254 feet north of the center of the railroad crossing.

‘It is further admitted that a person standing in the middle of the pavement of said highway at a point 27 feet east of the east rail at the crossing, the highway crossing across the railroad, can see a point elevated above the railroad track 13 1/2 feet from 307 feet north of the center of the highway crossing.

‘It is further admitted that a person standing in the same place as before described can see a point elevated above the railroad track 9 1/2 feet 268 feet north from the center of the highway crossing.

‘It is admitted that a locomotive going around the curve toward the station on the Hocking Valley main line west, and coming toward the toolhouse of the railway company, coming is sight of the Mink porch on the hill, would be a distance from the highway crossing at Vanden's point across the railroad of 836 feet, and that the distance from the highway crossing to the toolhouse is about 986 feet.

‘It is admitted that a locomotive is about 14 1/2 feet high at its highest point.’

These stipulations leave no doubt upon the question of visibility.

This question is still further clarified by another stipulation, which is found on page 46 of the record:

‘It is admitted by counsel on both sides that a person sitting in an automobile, at a distance 41 feet east of the rail, in the center of the highway crossing, crossing the Hocking Valley Railway track at Vanden's point, can see to the right and north of the center of the said highway crossing an object 15 1/2 feet high, or above the railroad track 224 feet north of the center of this crossing.’

It further appeared by the admission of Vance during the course of his examination that he crossed the track at this point two or three times per week, and that he was thoroughly familiar with the location of the track and the surrounding conditions; that his car, including the brakes, was in good running order, and that he was perfectly familiar with its operation.

While the petition claims that the train was running at a speed of more than 30 miles per hour, the testimony of the only witnesses who made any estimate of the rate of speed was uniform that the rate was from 25 to 30 miles per hour. Vance did not testify on this point.

Concerning the speed of the automobile the testimony of the witnesses was uniform that the rate was 8 or 10 miles per hour, except that one witness, Charles Matthews, estimated it to be 10 or 12 miles per hour.

The testimony as to the distance within which a Ford automobile traveling at that rate of speed could be stopped varies from 12 feet, as testified by an expert, to 20 to 25 feet, as testified by Vance.

It is undisputed that the highway approach to the crossing from the south and east was uphill on a 3 or 4 per cent. grade.

The case was tried twice in the court of common pleas, and upon the first trial, at the close of plaintiff's testimony, the court directed the jury to return a verdict for the defendant, on the ground that the testimony of plaintiff and plaintiff's witnesses showed that the injury was caused solely by plaintiff's own negligence or at least that plaintiff's negligence contributed thereto. On motion for new trial that verdict was set aside for the reason that the court believed that under the issues the defense of contributory negligence could not be made.

On the second trial of the case, after hearing the testimony of the plaintiff and his witnesses a motion was again made to direct the jury to return a verdict for the defendant, which was overruled, and, the defendant offering no testimony, the cause was submitted to the jury, and a verdict was rendered for the plaintiff. A motion was then made for judgment in defendant's favor notwithstanding the verdict, which motion was overruled, and judgment entered, and this judgment was afterward affirmed by the Court of Appeals.

Syllabus by the Court

Willful tort involves the element of intent or purpose, and is therefore distinguished from negligence, whatever may be its grade, whether slight, ordinary, or gross.

Negligence does not necessarily involve the conscious purpose to do a wrongful act, or to omit the performance of a duty. Intent, purpose, or design need not be proven.

Willful tort involves the element of malice or ill will, but it is not necessary to show actual malice or ill will. It may be shown by indifference to the safety of others after knowledge of their danger, or failure after such knowledge to use ordinary care to avoid injury.

When defendant's conduct amounts to willfulness, and when injury is occasioned by his conscious wrongdoing, the plaintiff's negligence is no defense.

Defendant is not precluded from urging plaintiff's negligence as a defense by the allegation of willful wrongdoing in the petition, but the proof must tend to establish such conscious wrongdoing.

Willful tort is not shown by proving the simple violation of a statute or ordinance unaccompanied by the intent or purpose to do injury after knowledge of danger, or failure after such knowledge to use ordinary care to avoid injury.

When either party presents...