Toledo Terminal R. Co. v. Hughes
| Citation | 115 Ohio St. 562,154 N.E. 916 |
| Decision Date | 28 December 1926 |
| Docket Number | No. 19841.,19841. |
| Parties | TOLEDO TERMINAL R. CO. v. HUGHES. |
| Court | United States State Supreme Court of Ohio |
TOLEDO TERMINAL R. CO.
v.
HUGHES.
No. 19841.
Supreme Court of Ohio.
Dec. 28, 1926.
Error to Court of Appeals, Lucas County.
Action by Lorus W. Hughes against the Toledo Terminal Railroad Company. Judgment for defendant by the court of common pleas was reversed by the Court of Appeals, and defendant brings error. Reversed, and judgment of common pleas affirmed.-[By Editorial Staff.]
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.
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.
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.
[Ohio St. 563]
[154 N.E. 917]
Fraser, Hiett, Wall & Effler, of Toledo, for plaintiff 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 [Ohio St. 565]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...
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