Trushel v. New York Cent. R. Co.

• Decision Date: 30 April 1956
• Parties: , 10 O.O.2d 428 TRUSHEL, Appellant, v. NEW YORK CENTRAL RD. CO., Appellee.
• Court: Ohio Court of Appeals

Page 197

109 Ohio App. 197

164 N.E.2d 780, 10 O.O.2d 428

TRUSHEL, Appellant, v. NEW YORK CENTRAL RD. CO., Appellee.

Court of Appeals of Ohio, Huron County.

April 30, 1956.

Syllabus by the Court.

1. In an action to recover for injuries resulting from a collision between a train and an automobile at a village crossing, it is error for the trial court to strike from plaintiff-automobile-operator's petition the village ordinance regulating the speed of trains through such village to 'ten miles per hour' and the allegations charging a violation thereof, without first requiring defendant railroad to make a showing by evidence that the circumstances and conditions surrounding the crossing and the manner in which trains were operated did not justify or make reasonably necessary such regulation and that such ordinance was, therefore, an unreasonable exercise of the police power by the village.

2. In such case, it is error, though not necessarily prejudicial, to charge the jury to the effect that the village had no valid speed ordinance.

3. In such case, the use of the word, 'mere,' in a charge to the jury in the phrase, 'an automatic signal is a mere warning,' as descriptive of the purpose of signalling devices, does not constitute prejudicial error.

4. In such case, where the record tends to show that the view of such crossing at certain approach points was obstructed, and there is no evidence tending to show that plaintiff-operator of such automobile did not look and listen for the train, it is prejudicial error to charge the jury that if there was a place on the street on which plaintiff's automobile was traveling 'where the train could be seen as it approached the crossing' and 'the train could have been seen by the plaintiff from that space as she passed, and she failed to look without reasonable excuse therefor, she was guilty of negligence, and if such negligence contributed to produce the injury, then she could not recover.'

5. Contributory negligence is an affirmative defense, and cannot be raised merely by 'intimation'; and, where the defendant in a negligence action does not plead the defense of contributory negligence in his answer, it is improper and prejudicial to charge the jury that the defendant had by his answer raised the defense of contributory negligence by 'intimation.'

Miller, Miller & Miller, Norwalk, for appellant.

G. Ray Craig, Norwalk, for appellee

DEEDS, Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Huron County, entered by that court following the verdict of a jury in favor of defendant, appellee herein. The parties will be referred to herein as plaintiff and defendant, respectively, as they appeared in the trial court.

The action was commended by the plaintiff to recover damages for claimed personal injuries resulting from a collision between a train operated by the defendant and an automobile which plaintiff operated upon the tracks of the defendant on Townsend Street in the village of Greenwich, Huron County, on May 31, 1953, at about 8:15 in the evening of that date.

Plaintiff, by her petition, alleged negligence against the defendant in the following particulars:

'At the tiem and place of the collision, the defendant was negligent in particulars following:

'(1) operating its train at a greater speed, to wit: 90 m. p. h., than was reasonable and proper, having due regard for

'(a) a cut of cars on its southerlymost track west of the highway.

'(b) private buildings closely built to its southerly right-of-way west of the highway,

'(c) the village and its speed limit for trains then in force and effect, a copy attached, made a part hereof and marked for identification 'Exhibit A,' and

'(d) the differential of its flasher circuit and highway train arrival;

(2) maintaining an inoperative flasher signal device;

'(3) failing to ring the bell, to sound the whistle, or to light headlight; * * *'

The charges of negligence contained in plaintiff's amended petition filed following the ruling of the court in striking certain allegations from the petition were:

'(1) operating its train at a greater speed, to wit: 90 m. p. h. than was reasonable and proper, having due regard for

'(a) a cut of cars on its southerlymost track west of the highway '(b) the time interval--10 seconds--between the time the train made the flasher circuit and arrived at the highway;

'(2) maintaining a flasher signal device that did not flash the signal of the approaching train;

'(3) failing to ring the bell, to sound the whistle, or to light headlight; * * *'

The allegations of the answer of the defendant to the amended petition, pertinent in a determination of this appeal, were:

'It, also, admits that in the early evening of May 31, 1953, plaintiff was operating an automobile in a northerly direction on Townsend Street, a public highway in the village of Greenwich, Ohio, and that at the same time the defendant was operating a passenger train in a northeasterly direction on its right of way in said village, and that in the intersection of defendant's right of way and Townsend Street a collision between said automobile and said train occurred; and admits and avers that in some way unknown to defendant, plaintiff, after alighting from said automobile, was injured, but not to the extent and seriousness alleged in the amended petition.

'Further answering said amended petition, defendant denies each and all the allegations and statements in said amended petition contained, except such as are herein admitted.'

The facts as disclosed by the record essential in a consideration of this appeal are that defendant maintained three sets of railway tracks extending in a general northeasterly and southwesterly angular direction which passed over and intersected Towhsend Street, extending in a northerly and southerly direction in the village of Greenwich in Huron County, and on the date of the collision and for a considerable time prior to that date the defendant maintained flasher signalling devices located at the northwesterly and southeasterly limits of the crossing.

The two most northerly tracks were maintained by the defendant as main tracks and were used for trains, while the most southerly track was referred to and known as a 'team' or storage track and was used by the defendant as a storage track and for loading and unloading box and other freight cars, also for cars used as living quarters for workers in bridge or carpenter crews.

It is undisputed that, at the time of the collision and for some time prior thereto, the southerly track was occupied by a string of box and other freight cars and cars used for living quarters for workmen, from a point a distance estimated by witnesses at from 30 to 70 feet in a westerly direction from the intersection and extending upon that track to the west in a continuous string for a distance of from 800 to 1000 feet. It is clear that the view of the operator of an automobile approaching the crossing upon Townsend Street from a southerly direction would be obstructed until the occupant of such automobile had reached a place beyond the standing freight cars, at which time the forward end of the automobile would necessarily be very near the second or center set of tracks, upon and over which tracks the train involved in the collision was being operated at the time of the collision.

The testimony is that plaintiff operated the automobile upon Townsend Street in a northerly direction at about 4 or 5 miles per hour to a place at or near the southerly and 'team' set of tracks, where she brought the automobile to a stop and looked for approaching trains, but did not see or hear the train; following which plaintiff operated the automobile upon the center set of tracks, at which point plaintiff first saw the train 200 feet away and got out of the automobile, after which the train, being operated by the defendant in an easterly direction at from 76 to 79 miles per hour, collided with the automobile, bringing some part of the automobile into contact with plaintiff, resulting in a fracture, as claimed by plaintiff, of one of the vertebrae of plaintiff's spine.

The plaintiff testified that the flashing devices were not signalling or flashing as she approached and operated the automobile upon the tracks, and that she did not hear any warning from the train by whistle or bell, prior to the collision, whereas the testimony of the witnesses for the defendant is that the statutory signals by both whistle and bell were sounded and that the flasher signalling devices were in operating condition and were flashing as the train approached and passed upon and over Townsend Street.

We will give consideration to plaintiff's assignment of errors as follows:

1. The court erred in striking from plaintiff's petition her specification of negligence, to wit (1-b and c).

2. The court erred in giving, over plaintiff's objection, three special requests, to wit, charges Nos. 1, 2 and 3.

3. The court erred in its general charge, to wit, the village of Greenwich has no valid speed ordinance.

4. The court erred in its charge to the jury, to wit, an automatic signal is a mere warning.

5. The court erred in charging the jury that defendant's answer pleaded negligence by intimation.

6. The court erred in charging the jury about a place on the south side of Townsend Street where the train could be seen.

Specification (c) referred to in plaintiff's first assignment of error relates to an ordinance of the village of Greenwich regulating the speed of trains, which provided as follows:

'Ordinance No. 263.

'That it shall be unlawful for any engineer, conductor, or person in charge of any train or locomotive to run; or cause to be run said train or locomotive, within the corporate limits of the village of Greenwich, Ohio, at a greater rate of speed than ten miles per hour.'

The order of the Court of Common Pleas in striking the ordinance from the...