Reed v. Erie R. Co.
| Decision Date | 08 June 1938 |
| Docket Number | 26991. |
| Citation | 15 N.E.2d 637,134 Ohio St. 31 |
| Parties | REED v. ERIE R. CO. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
A railroad company is not liable for the death of an automobile passenger occasioned when the automobile is driven against a moving freight train rightfully occupying its track at a highway crossing in the open country, where it appears that the company had erected a sign in literal compliance with Section 8852, General Code, that there were other effective signs denoting the presence of the crossing and that the automobile struck the forty-second car back of the locomotive.
This is an action for wrongful death, commenced in the Court of Common Pleas of Union county by the appellant, administrator of the estate of Leah Catherine Reed, against the appellee the Erie Railroad Company.
On the night of February 27, 1935, appellant's decedent was riding as a passenger in an automobile which was driven against a car of appellee's freight train as it was passing over a grade crossing on State Route No. 31, several miles northwest of the city of Marysville, Ohio. The collision caused the death of appellant's decedent and the driver of the automobile.
Appellee was charged with negligence in the following respects:
1. Failure to erect and maintain a warning sign as required by Section 8852, General Code;
2. Failure to have any signal in operation at the crossing, with lights thereon;
3. Failure to have any crossing bells or gates in operation at the crossing, or any lights on the freight cars themselves which would indicate the presence of a train on the crossing;
4. Failure to give notice by bell or whistle of the approach or presence of the train.
The case was tried to a jury, resulting in a disagreement. It was then submitted to the judge of another county, without the intervention of a jury, on the pleadings and a transcript of the evidence taken at the jury trial.
It was found by the court that the appellee had failed to erect a sign at the crossing, in compliance with Section 8852, General Code, and that such neglect was a proximate cause of the death of appellant's decedent. Damages were awarded in the sum of $2000.
An appeal on questions of law was taken to the Court of Appeals, which court, all three judges concurring, reversed the judgment below and rendered final judgment for the appellee on the basis that the train of cars on the crossing afforded ample notice of the proximity of the railroad track and the presence of the train; and the failure of the driver of the automobile to observe the train and stop his vehicle was the proximate cause of the death of appellant's decedent, the negligence, if any, of the appellee in failing to maintain a statutory sign or other signs or signals at the place mentioned not being a proximate cause of such death.
Finding its judgment in conflict with a judgment pronounced on the same question by the Court of Appeals of Lorain county in the case of Richter v. Wheeling & Lake Erie R. Co., being cause No. 619 on the docket, the Court of Appeals of Union county certified its record to this court for review and final determination.
Additional facts are contained in the opinion.
Wilbur E. Benoy, of Columbus, and Clifton L. Caryl, of Marysville, for appellant.
Foote, Bushnell, Burgess & Chandler and Guthery & Guthery, all of Cleveland, for appellee.
Should the appellee be held legally responsible for the death of Leah Catherine Reed, upon the evidence adduced?
The following material facts are shown by the record:
Route 31 is a state highway, with a concrete surface, running in a general northerly and southerly direction. Some few miles northwest of the city of Marysville, Ohio, in the open country, it is intersected at an angle by a single track of the Erie Railroad, running in a general easterly and westerly direction.
On the night of February 27, 1935, at about ten o'clock, four persons, two young men and two high school girls, one of whom was appellant's decedent, were proceeding north from Marysville over State Route No. 31 in an automobile of the type known as a coupe, all occupying the same seat. One of the young men was driving and they were traveling at an estimated speed of from 30 to 35 miles per hour. It was a dark night but the lights on the automobile were burning brightly and the conveyance was in good mechanical condition.
According to the photographs, attached to the bill of exceptions as exhibits, the highway dips slightly to the south of the crossing, but is practically level for a considerable space just before reaching it. When the vehicle was on this level stretch, its occupants noticed a moving train. Brakes were applied, but the automobile struck the forth-second...
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