Stugard v. P.C.C. & St. L. Ry. Co.
| Citation | 110 N.E. 956,92 Ohio St. 318 |
| Decision Date | 17 June 1915 |
| Docket Number | 14744 |
| Parties | Stugard, Admr., v. The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. |
| Court | United States State Supreme Court of Ohio |
Reversals-Court of appeals-Weight of evidence-Divided court-Section 6 Article IV, Constitution, 1912-Journal entry controls when-Railroad-crossing accident-Negligence and contributory negligence, jury questions-Motion to direct verdict-Final judgment erroneous, when.
This was a proceeding brought in the superior court of Cincinnati by George Stugard, as administrator of the estate of John B Vastine, deceased, to recover damages for the wrongful killing by the defendant of the deceased.
The petition averred that in April, 1912, while Vastine was driving a wagon loaded with lumber over and across the track of the defendant, upon Erie avenue in the city of Cincinnati at the intersection of said track, through the negligence and carelessness of the defendant and its employes an engine and train of cars were run on said track over said crossing striking the wagon which decedent was then driving, throwing the wagon and the lumber, with which said wagon was loaded on to the decedent, throwing him to the ground and inflicting injuries upon him from which he died on the 4th of May following; that the avenue is a much-traveled thoroughfare in the city and that the crossing thereof with the track of the defendant's road was exceptionally dangerous, all of which was well known to the defendant, but that defendant negligently failed to protect those approaching and using said crossing by watchmen, gates, alarm bell or in another way; that the view of approaching trains at said crossing was obstructed and defendant negligently caused and permitted cars to be left standing on sidetracks adjacent to said crossing, which obstructed the view of the same and its approaches to defendant's servants operating engines over said track and the view of an approaching train to persons on said highway approaching the crossing; that the engine and train were being negligently run at a high, dangerous and excessive rate of speed when approaching and going over said crossing and without sounding any warning of their approach by bell, whistle or otherwise.
The answer of the defendant admits that it is a corporation organized and operated as alleged, and denies each and every other allegation in the petition.
It further alleged that the death of the decedent was caused by his own negligence, in that he negligently failed to observe the approaching train before he approached or went on the track, when, by the exercise of ordinary care, he could have done the same in time to have avoided injury.
The reply denied any negligence on the part of Vastine.
There was a verdict by the jury in favor of the plaintiff, upon which judgment was entered by the superior court. At the conclusion of the plaintiff's evidence the defendant moved the court to direct a verdict in favor of the defendant, which was overruled. This motion was renewed at the conclusion of all the evidence and was likewise overruled. Thereupon a motion was made to enter judgment in favor of the defendant, notwithstanding the verdict. This was overruled.
In an error proceeding in the court of appeals that court reversed the judgment of the court below and entered final judgment for the railway company. This proceeding is brought to reverse the judgment of the court of appeals and affirm that of the superior court.
Mr. T. J. Edmonds; Mr. John E. Shepard and Messrs. Nelson & Hickenlooper, for plaintiff in error.
Messrs. Maxwell & Ramsey, for defendant in error. BY THE COURT.
It is urged by the plaintiff in error that the judgment of the court of appeals should be reversed because an examination of the record will disclose that the decision of that court, in reversing the judgment of the court below, was based upon the weight of the evidence and was...
To continue reading
Request your trial