Y. & S. Ry. Co. v. Faulk

• Decision Date: 20 April 1926
• Docket Number: 19395
• Citation: 114 Ohio St. 572,151 N.E. 747
• Parties: The Youngstown & Suburban Ry. Co. v. Faulk.
• Court: Ohio Supreme Court

151 N.E. 747

114 Ohio St. 572

The Youngstown & Suburban Ry. Co. v. Faulk.

No. 19395

Supreme Court of Ohio

April 20, 1926

Negligence - No evidence tending to establish defendant's negligence - Verdict and judgment for plaintiff contrary to law - Reversible error to override motion for new trial, when.

A verdict and Judgment in favor of the plaintiff, in an action based on negligence, wherein no evidence is offered tending to establish negligence of defendant, are contrary to law and it is reversible error for the trial judge to overrule a motion for a new trial based on this ground.

The facts are stated in the opinion.

Mr Osborne Mitchell, Mr. A. B. Calvin, and Messrs. Kennedy Manchester, Conroy & Ford, for plaintiff in error.

Mr Fred J. Heim, and Mr. John Willo, for defendant in error.

KINKADE J.

Mabel Faulk, hereinafter referred to as Faulk, brought an action against the Youngstown & Suburban Railway Company, hereinafter referred to as the company, to recover damages alleged to have been sustained by reason of personal injuries to Faulk, caused by the negligence of the company. The trial in the court of common pleas resulted in a judgment in favor of Faulk for $6,000. This judgment was affirmed by the Court of Ap- ______________

New Trial, 29 Cyc. p. 818. ______________ peals, and the company now prosecutes error in this court.

The injury occurred July 27, 1922, at about half past 11 o'clock at night, at Kelly's Park stop, a flag station on the interurban railway operated by the company, about one mile east of Leetonia, Ohio, and near the northeast corner of Kelly's Amusement Park. The interurban car that inflicted the injury upon Faulk was the last car going in that direction that night. Many of the people who visited this amusement park rode upon the interurban cars of the company, boarding and leaving the cars at this flag station. The last car at night was usually filled with passengers on leaving this station, as stated, and there was a good deal of crowding on the part of the people waiting there in order to get on the car as quickly as possible so as to secure seats. Faulk, with a companion, went to the station a little before the time of the arrival of the car. While waiting for the car, they stepped across the track from the loading side in order to make use of a seat which was near to the track on the other side. They remained by this seat until they heard the whistle of the interurban car as it approached the station, then Faulk recrossed the track in order to be in position to board the car as soon as it arrived. Prior to the time that Faulk recrossed the track, as stated, a large number of people who desired to take that car had assembled upon the loading side of the track at the point where the car was expected to stop. This crowd of people were facing the track, and the front line of the crowd was as near the track as they deemed it safe to be, in order that they might avail themselves of the first opportunity to board the car as it stopped. Faulk recrossed the track immediately in front of this assembly of people, and turned facing the track, and then undertook to push herself back into the crowd so as to be a safe distance from the approaching car. The headlight on the car was burning, and the car was lighted inside. Faulk not only heard the station whistle given by the motorman, as stated, but also plainly saw the headlight on the lighted car approaching. Faulk's own testimony fixed the number of people assembled there at about 50. She testified that there was a good deal of crowding forward as the car approached, and that very naturally, the crowd shoved her farther in toward the track. But she testified that, notwithstanding this, she thought she was in a safe place. The fact is that some part of the car, probably the handle near the side of the front door in the side of the car, struck Faulk and inflicted the injury of which she complains.

There is no evidence in the record that, anybody else in that assembly of people was hit by any part of the car. The evidence is that the car stopped at its usual stopping place. It did not run past the usual stop and then back up to the place where the people were assembled, nor did the people find it necessary to follow the car and board it at another point than where they were standing.

Faulk averred in her petition that her injuries 99 were directly caused by the carelessness and negligence of the defendant in the following par- ticulars: That the defendant and its servants, agents, and employees in charge of and running and operating said passenger car at said time and place, as it approached said Kelly's Park stop carelessly and negligently failed to strike a gong on said car or to give any warning whatever of the approach of said car, and carelessly and negligently failed to keep a vigilant watch for pedestrians and prospective...