Tanzi v. New York Cent. R. Co.

• Decision Date: 21 March 1951
• Docket Number: No. 32192,32192
• Citation: 98 N.E.2d 39,155 Ohio St. 149,24 A.L.R.2d 1151,44 O.O. 140
• Parties: , 24 A.L.R.2d 1151, 44 O.O. 140 TANZI v. NEW YORK CENTRAL R. CO. et al.
• Court: Ohio Supreme Court

Page 149

155 Ohio St. 149

98 N.E.2d 39, 24 A.L.R.2d 1151, 44 O.O. 140

TANZI v. NEW YORK CENTRAL R. CO. et al.

No. 32192.

Supreme Court of Ohio.

March 21, 1951.

Syllabus by the Court.

1. In passing upon a defendant's motion for a directed verdict, the trial court is required to construe the evidence most strongly in plaintiff's favor. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246, approved and followed.

2. Whether the testimony of a witness or of a party is false or mistaken is a question for the jury or other trier of the facts.

3. Where a railroad has customarily provided a watchman at a particular crossing to warn of the approach of all trains to that crossing, then, at least so far as a motorist who knows of that customary practice is concerned, the failure of the watchman to warn such motorist of a train approaching the crossing may, under the circumstances of the particular case, constitute negligence, even in an instance where the approach of such train would not otherwise involve an unusual hazard to such motorist. Paragraph three of the syllabus in Cleveland, C., C. & I. Railroad Co. v. Schneider, 45 Ohio St. 678, 17 N.E. 321, approved in part and followed.

4. Even if negligence of a party is a cause of injury to another, there can be no liability if the cause is a remote cause and not a proximate cause. McNees v. Cincinnati Street Ry. Co., 152 Ohio St. 269, 89 N.E.2d 138, approved and followed.

5. Where a railroad customarily provides a watchman to warn of all approaching trains at a crossing and the driver of an automobile approaching the crossing at night reasonably relies on the watchman so warning, and where such watchman fails to warn such driver that a train is about to occupy that crossing and such failure to warn induces such driver, even though such driver is negligent in so doing, to approach the crossing at a speed substantially greater than he would have used if a warning had been given, a jury may reasonably find that such failure of the watchman to warn is a proximate contributing cause of injuries to a party standing at a bus stop on the sidewalk near that crossing and injured when such driver suddenly turns his automobile onto the sidewalk in an emergency effort to avoid colliding with such train.

6. Where an action is brought against two defendants to recover for injuries alleged to have been caused by their joint negligence and where, as a matter of law, the negligence of the first defendant was a proximate cause of such injuries but the existence of negligence of the second defendant and the proximate causal relationship between any such negligence of the second defendant and the plaintiff's injuries is very doubtful, a verdict for the first defendant and against the second defendant clearly indicates that such verdict was not rendered by reasonable minds and such verdict against the second defendant must be set aside.

About 1:30 a. m. on October 8, 1940, the plaintiff Sara Tanzi, while standing on a sidewalk at a bus stop located on the east side of West 130th street in Cleveland, about 35 to 50 feet south of the crossing of four railroad tracks of the New York Central Railroad Company, was seriously injured when struck by an automobile driven north by the defendant Jerman, who swerved to his right off of the street to avoid a collision with a slow moving freight train of the railroad which was either crossing or about to cross in front of his automobile. The railroad maintained two watchmen at this crossing throughout the day and night. Besides carrying a considerable volume of switching traffic between the nearby Rockport and Linndale yards on opposite sides of the crossing, the tracks at this crossing carried high-speed passenger trains. There were no flasher systems or gates at the crossing.

An action was instituted by the plaintiff against the railroad and Jerman in July 1941. Before the case was reached for trial, Jerman was inducted into military service so that the case was not tried until September of 1947.

Plaintiff withdrew from the petition the allegations of negligence with respect to failure to give the required bell and whistle signals.

The railroad's motion for a directed verdict made at the conclusion of all the evidence was overruled. The jury returned a verdict against the railroad for $67,500 and in favor of the defendant Jerman. A motion for a new trial was filed by the railroad. Also, the plaintiff filed a motion for a new trial as against the defendant Jerman. The trial judge did not rule upon these motions until February of 1949, 16 months later, when he overruled them.

The railroad appealed from the judgment of the trial court thereafter rendered on the jury's verdict. No appeal was taken by the plaintiff from the judgment in favor of the defendant Jerman. On March 1, 1950, the Court of Appeals, without opinion, affirmed the judgment against the railroad.

The case is before this court on an appeal from the judgment of the Court of Appeals, a motion to certify having been allowed.

Harrison, Thomas, Spangenberg & Hall, Cleveland, for appellee.

Paul Lamb, Cleveland, for appellant.

TAFT, Judge.

The first question to be considered is whether the trial court erred in refusing to grant the railroad's motion for a directed verdict made at the close of all the evidence. In passing upon this motion, the trial court was required to construe the evidence most strongly in plaintiff's favor. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246.

On this question, much of the argument of the railroad is based upon the premise that reasonable minds can come only to the conclusion that the train was occupying the crossing at a time when the defendant Jerman's automobile was a substantial distance from the crossing.

Since the crossing was lighted by a city street light on a telegraph pole at a point on the tree-lawn on the west side of the street about 40 feet from the tracks, it might be impossible to answer the railroad's argument if the above premise is sound. This would be especially true, if it were a fact, as practically all the witnesses who were in a position to know testified and as plaintiff's attorney conceded for the purpose of his argument to the jury, that the watchman Paris was standing with his lantern in the middle of the street on the south side of the tracks. Assuming that the jury might reasonably infer that the lantern was being held so that its side shields prevented its red light from being visible to the south, could the jury have reasonably inferred that Jerman, who did not see the slow moving train or the watchman, would have seen the red light if it had been pointed toward him? See Cobb, Jr., Adm'r, v. Bushey, 152 Ohio St. 336, 89 N.E.2d 466.

The difficulty with this position of the railroad is that the evidence in the record is in conflict on the questions as to whether the watchman was in the street and as to whether the train was on the crossing at a time when the defendant Jerman was a substantial distance from the crossing.

We share with the railroad the doubt as to whether any credence should be given to the testimony, especially that of defendant Jerman, tending to prove that the watchman was not there and the train was not on the crossing at that time. Apparently that doubt was also shared by counsel for the plaintiff, who indicated that doubt by several statements made during his argument to the jury, the last of which was: 'I am not asking you to return a verdict against the railroad because of anything John Damm has said or Joseph Jerman has said.'

However, as we understand it, whether a witness was telling the truth or was mistaken was a question for determination by the jury. It is true that, in the instant case, the admissions made by the defendant Jerman before the trial contradicted his testimony at the trial on most vital points. However, while extrajudicial statements of a party or a witness, contradicting the testimony which he gives at the time of trial, may have great weight, they are rarely, if ever, conclusive of facts to which they relate. See Harrison v. Castner, 11 Ohio St. 339; Morgan v. Spangler, 14 Ohio St. 102; Perkins v. Benguet Consolidated Mining Co., Ohio Sup., 98 N.E.2d 33. That does not result in a party to a law suit having no protection against false testimony. A witness is required to take an oath before giving his testimony and is subject to prosecution for perjury if he gives false testimony. Furthermore, juries have the duty to detect and disregard false testimony. Finally, in the event that a jury does not detect and disregard false testimony, the trial court and the Court of Appeals each has a clear duty to grant a new trial on the weight of the evidence where it appears probable that a verdict is based upon false testimony.

The question on a motion to direct a verdict is not the same as that presented on a motion to grant a new trial on the weight of the evidence. Even if the evidence is such that any verdict rendered for one of the parties would necessarily be against the weight of the evidence, it does not follow that the other party is entitled to a directed verdict.

If, notwithstanding the other testimony and evidence to the contrary, the jury believed the testimony given by the plaintiff's witness Damm and by the defendant Jerman at the time of the trial in the instant case, then the jury could have found that defendant Jerman was driving about 30 to 35 miles per hour and was relying on a watchman to warn of any approaching train; that he did not hear the statutory bell and whistle warnings which were given; that his view of any train approaching from his left at the 60 degree angle involved would be obstructed by buildings and trees until he was within about 30 or 40 feet of the tracks; that there was no watchman at the crossing; and that the train did not reach the crossing until the defendant Jerman was about 50 feet, or at...