Toledo Term. Rd. Co. v. Hughes

• Decision Date: 25 December 1926
• Docket Number: 19541
• Citation: 154 N.E. 916,115 Ohio St. 562
• Parties: The Toledo Terminal Rd. Co. v. Hughes.
• Court: Ohio Supreme Court

154 N.E. 916

115 Ohio St. 562

The Toledo Terminal Rd. Co. v. Hughes.

No. 19541

Supreme Court of Ohio

December 25, 1926

Negligence - Exercise of care at railroad crossing - Traveler not to rely entirely upon silence of automatic signal - Contributory negligence and directed verdict - Automobile driver collides with train on crossing at night in fog.

1.

A traveler approaching a railroad crossing at which he knows an automatic signal is maintained, while entitled to place some reliance upon the indication of safety which silence of the signal implies, is nevertheless bound to use such care in addition as an ordinarily prudent man would use under such circumstances.

2.

Where the pleadings and statement of counsel of what he expects the evidence to show disclose that the driver of an automobile with knowledge of the existence of a railroad crossing the highway at grade, so drove his automobile that when, upon discovering a freight train standing upon the track, "he swung his wheels to the left, and the rear end of the car swung around and caught between two freight cars, the train then started and dragged him off the road into the ditch," the railroad company having no knowledge of his presence, such accident occurring at night, in a dense fog when "it was very hard to distinguish objects ahead," and, by reason of an automatic signal not being in operation, "he was unable to tell just the exact location, or in fact tell at all that the road was blocked and that there was a train on the track at that particular point," such driver is guilty of contributory negligence which justifies the direction of a verdict against him, even though automatic warning signals located at such crossing were not working, nor other warnings given by the railroad company.

This is a proceeding in error to the Court of Appeals of Lucas county. The original case was instituted by Lorus W. Hughes in the common pleas court of Lucas county against the Toledo Terminal Railroad Company, plaintiff in error here, to recover damages for personal injuries and damage to his automobile resulting from alleged negligence of the Toledo Terminal Railroad Company.

It was claimed by the plaintiff that the accident occurred and his damages accrued due to the negligence of the defendant in not giving warning to him that a freight train, into the side of which he drove his automobile, was blocking the crossing over which he attempted to drive his automobile. The allegations of negligence were denied by the defendant, and an answer filed in which specific allegations of negligence on the part of the plaintiff were pleaded. To this answer plaintiff failed to file a reply.

Trial was had in the common pleas court, and at the conclusion of the opening statement by counsel for plaintiff, counsel for defendant moved the court for judgment on the pleadings and a directed verdict on the opening statement. This motion was granted by the court. The court overruled plaintiff's motion for a new trial, and judgment was entered in favor of the Railroad Company.

Proceedings in error were instituted in the Court of Appeals of Lucas county, which court reversed the trial court and remanded the case for further proceedings.

Error is now prosecuted in this court to reverse the judgment of the Court of Appeals.

Messrs. Fraser, Hiett, Wall & Effler, for plaintiff in error.

Messrs. Thurstin & Riehm, for defendant in error.

DAY, J.

The amended petition filed herein recites:

"Plaintiff further says that for some time prior to November 15, 1923 the defendant maintained, at the intersection of said tracks and the Chicago pike, a target or signal consisting of an automatic bell and swinging electric light, which bell and electric light sounded and swung when the defendant's tracks were occupied by locomotives or cars, but that on the 15th day of November, 1923, said target or signal was defective and not in operation, although unknown to plaintiff and though required to be in good working order by the Public Utilities Commission of the state of Ohio.

"Plaintiff further says that about 4 a. m., on November 15, 1923, plaintiff was operating plaintiff's 1923 Ford sedan automobile in a westerly direction on said pike, in a careful and proper manner, at approximately 15 miles per hour, and was keeping a proper lookout and driving cautiously, and then slowed down to from 5 to 8 miles per hour when about 250 feet from defendant's tracks and proceeded cautiously; that there was a dense fog over said pike and railroad tracks at said time.

"Plaintiff further says that plaintiff in operating said automobile and when approaching said crossing maintained a careful lookout and listened to hear any warning signal or notice that said tracks were occupied by an engine or train of cars, and also looked to see if the target or signal at said crossing was operating, and, upon hearing no noise and not seeing said target or signal sounding and swinging to notify the public that said tracks were occupied by an engine or cars, proceeded to cross said railroad tracks and in so doing collided with the cars of the defendant company on said tracks. * * *

"Plaintiff further says that because of the dense fog aforesaid said crossing was obstructed by two white refrigerator cars of the defendant, and the engineer or other person in charge of defendant's train of cars and engine crossing said Chicago pike, which is a turnpike, failed to sound any signal or warning by bell or whistle and in no wise notified plaintiff of the approach or occupancy of said crossing by defendant's engine and cars.

"Plaintiff further says that with the lookout and careful operation of said automobile by plaintiff, plaintiff would have heard said whistle or bell or seen said electric light swinging had said whistle or bell been sounded or said light been in operation, and that because of the failure of the defendant to sound said whistle or bell and cause said electric light to show and swing, plaintiff was not notified that said crossing was occupied by defendant's engine and cars, and because of the lack of such notice said collision occurred."

The answer of the defendant company, after having made certain admissions, was, first, in the nature of a general denial; and for a second defense the defendant averred that at the time of the collision it was in every way exercising proper care, "that it was moving its train slowly over this crossing, and that the accident was contributed to and caused by the carelessness and negligence of plaintiff in failing to exercise his senses of sight and hearing in approaching said crossing to see whether or not a train was moving thereover, and in failing to approach said crossing at a safe and reasonable rate of speed, and that if the said plaintiff had exercised care in the driving of his automobile, and had approached said crossing with reasonable speed and at such speed as would enable him to stop within the range of his vision, the accident would never have happened."

No reply was filed to the answer, and upon the issues as thus made by the pleadings the parties went to trial. In the opening statement to the jury of what the plaintiff expected to show by the evidence, counsel for the plaintiff said:

"They drove along at a moderate rate of speed, and got outside of the city limits and got nearly to the terminal crossing and slowed down to a very slow rate of speed, and there was a fog in the air and it was very hard to distinguish objects ahead, and there was standing on the crossing of the Chicago Pike a train on the Terminal Railroad Company's tracks, and without any warning and without any lights or any means of notifying travelers that the train was blocking the crossing.

"When Mr. Hughes got almost up to the train he discovered it; he swung his wheels to the left, and the rear end of his car swung around and caught between two freight cars. The train then started and dragged him off the road into the ditch * * *.

"We expect the evidence to show that this train was stationary at the time, that it had a train crew aboard, and that they used no efforts whatever to notify travelers on the road through lights or blasts of the whistle or signals of any kind that the road was blocked.

"Further than that, we expect the evidence to show that they had a target-that is, a contrivance on a pole that when a train gets within a certain distance of the crossing it swings and a light flashes and a bell rings-that had been operating for some time previous to this collision, and we expect to show by the evidence that it was not in Operation at this time, and that by reason of that not being in operation Mr. Hughes was unable to tell just the exact location, or in fact tell at all that the road was blocked and that there was a train on the track at that particular point."

At the conclusion of this statement, there was a motion for a directed verdict, which the trial court sustained, for which ruling the Court of Appeals reversed.

This state of the record requires the solution of the proposition involved in the following question: Does the admission by the plaintiff that he knew of the location of a certain railroad crossing and of the existence of a heavy fog in the air which made it impossible to see more than a few feet ahead, together with the admission that he drove his automobile at night into the side of a freight train, constitute such negligence as would bar his recovery in an action against the railroad company for negligence in allowing its train to block such crossing without warnings by bell or light?

The rule as to the duty of a traveler upon the highway, approaching a grade crossing at a steam railroad, has often been stated by ...