Toledo, Columbus & Ohio River Co. v. Miller

• Decision Date: 26 June 1923
• Docket Number: 17663
• Citation: 108 Ohio St. 388,140 N.E. 617
• Parties: The Toledo, Columbus & Ohio River Railroad Co. Et Al. v. Miller.
• Court: Ohio Supreme Court

140 N.E. 617

108 Ohio St. 388

The Toledo, Columbus & Ohio River Railroad Co. Et Al. v. Miller.

No. 17663

Supreme Court of Ohio

June 26, 1923

Municipal corporations-Regulation of speed of trains-Section 8781 General Code-Validity of ordinance Constitutionality and reasonableness determined, how-Penalty may be demonstrated as a "fine"excessive verdict-Passion or prejudice-Weight of evidence.

1. An ordinance regulating the speed of trains through a municipality, enacted pursuant to Section 3781, General Code is not rendered invalid for the reason that the penalty for a violation or the same is denominated a fine, so long as no imprisonment or criminal process is sought to be enforced thereunder, but such "fine" may be collected as a penalty by civil action.

2. The constitutionality and reasonableness of a municipal ordinance regulating the speed of trains are questions of law for the court to decide, and to justify declaring void an ordinance limiting the speed of trains within a municipality its unreasonableness, or want of necessity as & police regulation for the protection of life ad property, must be clear and manifest.

3. In an action for damages for personal injury, a verdict should not be set aside unless the damages awarded are so excessive as to appear to have been awarded as a result of passion or prejudice, or unless it Is so manifestly against the weight of the evidence as to show a misconception by the jury of its duties in the premises.

The accident which gives rise to the cause of action herein set forth occurred on the 8th day of July, 1916, in the city of Cambridge, Guernsey county, Ohio, wherein the plaintiff had both legs cut off at a railroad crossing. The plaintiff was a young mar, claimed to he in good health and sound physically, engaged in the business of conducting a merry-go-round at a carnival then showing in that town. The accident occurred at the intersection of Fourth street and Wheeling avenue, at a point where the track of the plaintiff coming from an easterly direction, parallels Wheeling avenue and passes upon a curve across Wheeling avenue at Fourth street, continuing north on Fourth street a short distance, where it enters upon its private right of way. A street car line has a track in Wheeling avenue, and at Fourth street it is located a little to the southerly side, making a short turn into Fourth street off of Wheeling avenue and continuing north on Fourth street. One traveling in a westerly direction on Wheeling avenue therefore encounters two tracks at the intersection of Fourth street-first, that of the street railway; and, second, that of the steam railroad. The plaintiff was struck by a railway train approaching from the east as he was attempting to cross Fourth street at this point on foot, having approached the same from the east.

On the 2d day of April, 1917, the plaintiff filed his petition in the court of common pleas of Cuyahoga county against the defendants jointly to recover damages for injuries received by him by reason of the accident above referred to. The specifications of negligence in the petition are as follows: First, high, dangerous, and excessive rate of speed; second, failure to give warning by bell or whistle; third, failure to keep a lookout; fourth, failure to slacken speed and have train under control in approaching a dangerous crossing; fifth, failure to pro- vide gates; sixth, no automatic bell at the crossing; seventh, no flagman; eighth, failure to stop or slacken speed in season to avoid striking plaintiff, after defendant saw him in his position of peril, or in the exercise of ordinary care should have seen him.

To this petition the defendants filed what is denominated their "Joint and Separate Answer," wherein the following appears:

"They admit their respective corporate capacities and the operation of a railroad, substantially as alleged in said plaintiff's said petition; admit that on or about the 8th day of July, 1916, said plaintiff came in collision with one of defendants trains, and as a result thereof received certain injuries.

"Further answering, these defendants deny each and every allegation in said plaintiff's said petition contained."

Upon the issue joined, the case proceeded to trial, resulting in a verdict in favor of the plaintiff in the sum of $75,000. A motion for a new trial was denied, and an order of remittitur of all in excess of $45,000 was made, and a judgment on the verdict thus reduced was duly entered. Error was prosecuted to the Court of Appeals, resulting in an affirmance of the judgment of the court below. This court granted a motion to certify the record and upon a hearing in this court the judgment was reversed for errors in the charge, and the case was remanded to the court of common pleas for trial. (103 Ohio St. 17, 132 N. E., 156.) The second trial before the court of common pleas resulted in a verdict for $75,000.

The errors complained of in the present record were urged before the trial judge, but a new trial was denied, and judgment WaS entered upon the verdict. Error was again prosecuted to the Court of Appeals, which court affirmed the judgment of the court below, and this action is now prosecuted to reverse the judgment of the Court of Appeals.

Mr. Robert T. Scott and Messrs. Squire, Sanders & Dempsey, for plaintiffs in error. Messrs. Payer, Winch, Minshall & Karch, for defendant in error.

DAY, J.

The errors complained of in the present case may be grouped under the following heads:

First. The trial court erred in its charge to the jury, wherein, it is claimed, the doctrine of "the last clear chance" WaS attempted to be given, where the facts did not warrant its application, the same not having been pleaded in the case; and the prejudice is claimed to have been emphasized by the fact of an incorrect charge in that regard.

Second. The defendants were entitled to a judgment at the close of plaintiff's case, as a matter of law.

Third. Prejudicial error intervened by the admission of the ordinance and by the instructions of the court thereon.

Fourth. The defendants were prejudiced by the ruling of the court compelling them to proceed to trial upon an answer that had been changed in form without their knowledge or authority.

Fifth. The verdict is manifestly excessive, ap- pearing to have been rendered under tile influence of passion and prejudice.

Sixth. A further question is submitted to the court, raised by the defendant in error, that by reason of the transcript not being filed within the statutory period in the Court of Appeals that court was without jurisdiction, that the petition in error should have been dismissed and that the Court of Appeals erred in not dismissing it.

Of these in their order.

An examination of the general charge, which covers over 29 pages of the printed record, discloses that the trial court at one point (Record, 420) used this language:

"In one view of the case there is an exception, or rather the law does not regard the negligence of the plaintiff as directly contributing to his own injury, where if he had been guilty of some degree of,negligence, but nevertheless a person in charge of train, in this instance the engineer, by the exercise o,f ordinary care, does see, or ought to be able to se, a person in danger, and stop the train in time to avoid injuring him, in such case, although the person attempting to cross the track may have been negligent in some degree, yet after his negligence was known, or ought to have been known to the engineer, there was time to stop and avoid the injury, the law does not regard the negligence of the pedestrian as the immediate cause of the injury and will not defeat his recovery.

"You are to bear in mind the fact that this knowledge of the engineer, in such case, must have been gained; there must have been such a situation that be ought to have known it in time to have avoided the injury. So that in the present case, if you find that Mr. Miller was negligent in attempting to cross the tracks, and the engineer by the exercise of ordinary care could not have discovered his perilous situation in time to have stopped or slackened the speed of his train, then the plaintiff in this case is not entitled to a verdict, and you must find for the defendant."

It is claimed by the plaintiffs in error that this language of the trial court was a attempt to give to the jury what is technically known as the doctrine of the "last clear chance," and that it was incorrectly given as such doctrine, and that, not having been pleaded in the case, it was highly erroneous on the part of the trial judge to give or attempt to give the same, In support of this view we are cited to the well-known cases of Pennsylvania Co. v, Hart, 101 Ohio St. 196, 128 N. E., 142; Drown v. Northern Ohio Trac. Co., 76 Ohio St. 234, 81 N. E., 326, 10 L.R.A. (N. S), 421, 118 Arc. St. Rep., 844; Erie Rd. Co. v. McCormick, Admx., 69 Ohio St. 45, 68 N. E., 571; as well as a number of other authorities.

We are inclined to the view of the Court of Appeals that this case is not one for the application of the doctrine of "last clear chance." In the first place it is not pleaded. Again, the plaintiff at all times has denied any negligence on his part contributing to his injury, ad some important elements of that doctrine are omitted in the paragraph referred to; and we are not certain that the trial court had in mind the rule of "last clear chance," but believe that he may have been attempting to apply the rule as laid down in Steubenville & Wheeling Traction Co. v. Brandon, Admr., 87 Ohio St. 187, 188, 100 N. E., 325, 326:

"Where the motorman of a street car being operated on a public street in a much-frequented part of the city discovers, or by the exercise of...