Penna. Rd. Co. v. Vitti

• Decision Date: 23 December 1924
• Docket Number: 18273
• Citation: 146 N.E. 94,111 Ohio St. 670
• Parties: The Pennsylvania Rd. Co. v. Vitti, Admr.
• Court: Ohio Supreme Court

146 N.E. 94

111 Ohio St. 670

The Pennsylvania Rd. Co. v. Vitti, Admr.

No. 18273

Supreme Court of Ohio

December 23, 1924

Negligence - Question for jury - Whether person injured trespasser or licensee - Liability to policeman lawfully on premises - Railroad violations - Speed laws liable - Judgment on special verdict limited, how - Absence of finding of fact essential to plaintiff's case - Defendant not entitled to judgment when.

1. There the evidence is such as to warrant, it is the duty of the trial court to submit to the jury with proper instructions the question whether the person injured on the premises of another by the claimed negligence of the owner thereof was at the time of such injury on the premises either at the express or implied invitation Of the defendant, or whether he was a trespasser or a mere licensee.

2. The act of a railroad company, in violation of law or ordinance causing in jury to a police officer lawfully upon the premises in the discharge of his duty to apprehend persons there disturbing the peace by molesting passengers or injuring the property of the defendant, is actionable negligence, whether such officer be denominated a licensee or invitee.

3. The judgment rendered on a special verdict by a jury under Section 11462, General Code, must be the legal conclusion from the facts found In such special verdict, and the court cannot look beyond such findings of fact.

4. The rule that the defendant is entitled to judgment where there is an absence of finding of fact essential to a recovery by the plaintiff has no application where such absent finding would necessarily have been upon an issue as to which the court did not instruct the jury and erroneously refused to submit to the jury.

This action was instituted in the court of common pleas of Cuyahoga county, wherein plaintiff, as administrator of the estate of William Lupe, sought to recover damages for the death of the decedent, which, it was claimed, resulted from the negligence of the defendant, the Pennsylvania Railroad Company. Issue was made by the amended petition of the plaintiff and the answer of the defendant.

It was averred in substance that at the time in question the defendant company maintained and operated a passenger station in the city of Massillon, Ohio, located on the north side of two parallel tracks, which tracks extended in an easterly and westerly direction; that the track nearest the passenger station, known as the north track, is the track upon which west-bound trains travel, and the east-bound trains travel over the south track; that a short time before the arrival of train known as No. 8, an east-bound passenger train due to ar- rive about 1 o'clock at night, the decedent and two other young men purchased tickets from the agent of the company for transportation to Canton, Ohio, and while waiting upon the platform for the arrival of their train became engaged in a controversy with three other young man, and at about the time of the arrival of their train were attacked by the other group of young men, as a result of which a police officer in the vicinity of the depot was called; that upon his arrival the young men who had caused the disturbance and made the assault were on the south side of train No. 8, which had then arrived, and was standing at the depot, but upon seeing the officer approach they ran underneath or through the coaches of the train to the north side; that the police officer, together with plaintiff's decedent and one of his companions, who were assisting the officer in his endeavor to locate and arrest the three who had caused the disturbance, started in pursuit, and first climbed up into the baggage car of train No. 8, the south door of which was open; that the baggageman requested the police officer and plaintiff's decedent to go over on the north side of the train, and opened the north door of the baggage car, and the police officer and plaintiff's decedent then jumped out of the north door of the baggage car to continue their pursuit; that in continuing the search for the boys who had caused the disturbance, they proceeded eastwardly along the north track, and then turned back in a westerly direction, during all of which time, it is asserted decedent was assisting the police officer at the request of such officer; and that when they reached a point opposite the baggage coach, suddenly and without any warning whatever, another train of the defendant company known as No. 29, running at a reckless and dangerously high rate of speed, that is, about 50 miles an hour, traveling in a westerly direction upon said north track, struck plaintiff's decedent, and killed him instantly. It was further averred that at said time and place there was a number of electric lights burning, and that the tracks of the defendant are straight for a distance of 700 feet or more, so that the engineer and fireman could both have had a clear and unobstructed view along said north track for a distance of 700 feet or more east of the depot, and that the decedent could have been seen by the engineer and fireman when they were a sufficient distance away that a warning would have afforded him an opportunity to reach a place of safety.

The negligence charged by the plaintiff was (1) that train No. 29 was being operated at a careless, excessive, and dangerous rate of speed, to wit, 50 miles an hour, in violation of an ordinance of the city of Massillon which prescribes a maximum speed of 8 miles per hour; (2) that the engineer in the operation of the train failed and neglected to maintain a lookout along the track in front of the train; (3) that if the engineer was maintaining a proper lookout he saw plaintiff's decedent, or could have seen him, at a distance far enough away to have sounded the whistle and thus given warning to plaintiff's decedent of the approach of the train in time for him to have reached a place of safety.

The answer, in addition to making a general denial of the averments of the amended petition, pleaded contributory negligence of the decedent.

At the close of the trial, upon the request of counsel for defendant, the jury were instructed to and did return a special verdict, which is as follows:

(1) "The jury finds that Wm. Lupe was a licensee in being where he was at the time of the accident. (2) The jury finds established by the evidence that the defendant, the Pennsylvania Company, operated this train No. 29 at more than 8 miles per hour at the point in question. (3) The jury finds Wm. Lupe, on the track, could readily be seen by the engineer of No. 29, when said train was distant from him 800 feet. The engineer did not see him at all. (4) The jury established by the evidence that the engineer of train No. 29...