12 Ohio App. 397 | Ohio Ct. App. | 1920
This cause is heard on error to the court of common pleas, on the petition in error of The Cleveland Railway Company and the cross-petition in error of Gould & Maybach, partners, doing a contracting business as Gould & Maybach.
The action grew out of an accident in East Cleveland, at the intersection of Euclid and Beers-
There was evidence that if the cars came out of the yards at a high speed, their lurch on the curve, together with the drop in the street, caused the fenders to dip and come in contact with the trench covering.
Berger was a passenger from the city of Cleveland, en route to his home, about eight squares east of the place of the accident. On reaching the Windermere yard, the train turned in, dropped the trailer, and, preparatory to continuing its trip east, came out over the track in question at such speed that before it could be stopped it collided with the trailer of another train of the company on Euclid avenue.
The jury returned a verdict of $25,000 against the defendants below. It is sought to reverse that verdict and judgment.
The contractors claim that they are not liable; that there was no evidence against them on which to base the verdict; that Berger was negligent, and that his negligence was the proximate cause of the accident and his death.
It is admitted in the record that Berger lost his life by falling into ■ the open trench, immediately west of the curved track in question.
The testimony of the witnesses is in direct conflict on the following points, viz: the speed of the car coming out of the yard over the curved track; the height of the fenders above the ground, as to whether or not they dipped over the trench; the location of the rear door when Berger alighted from the car; whether the trench was covered on the evening in question, and, if so, by whom, and at whose direction it was removed; whether or not the car was backed before or after Berger alighted from it, and where he was when it backed; which of the conductors, Forsythe or Such, was first to leave the car; whether or not the red light at the location designated by “X,” plaintiff’s exhibit 12, was burning at the time in question; the number of lights and their proximity to the trench at this
These were jury questions, as were Berger’s conduct and the question whether he was in the exercise of ordinary care for his own safety in proceeding across Euclid avenue as he did.
On the claim of the contractors that there was no evidence against them, the undisputed record is that the street at the place of the accident was used by the railway company, by its employes going to and from the barns and shifting trolley poles, and by the public in crossing Euclid to Beersford avenue.
The contractors then owed the duty of making the crossing reasonably safe for the use to which it was put. If the trench was not covered, their ■duty was to use reasonable care to warn the public, either by lights or barriers. They claim that at quitting time, about 5:15 p. m., they covered the trench with boards and hung red lanterns as a warning. There was some testimony that the trench was not covered at'any time until after the accident. It can not be said that the statement of witnesses to that effect establishes such fact as a matter of law, or that the jury would not be authorized to find to the contrary.
The rule is that where contractors in the exercise of their legal right make a dangerous place in a street, over which the public have a right and are accustomed to travel, it is their duty to adopt reasonable precautions to guard the public against such dangerous place in the highway. The P., F. W. & C. Ry. Co. v. Bingham, Admx., 29 Ohio St., 364, 368.
The theory of counsel for the contractors was that they had lawfully made the excavation in the street, and did not owe a duty to cover or protect it.
They cite cases where a pedestrian used a street which was obviously dangerous, when there was a safe way, and the showing that there was a safe way barred recovery. The cases relied upon have reference to snow and ice on the street. City of Norwalk v. Tuttle, 73 Ohio St., 242; Schaefler v. City of Sandusky, 33 Ohio St., 246; Village of Conneaut v. Naef, 54 Ohio St., 529; Village of Mineral City v. Gilbow et al., 81 Ohio St., 263, and Veite, Admr., v. City of Cincinnati, 83 Ohio St., 456.
The rule stated in Norwalk v. Tuttle, supra, was that the petition did not contain an allegation that there was a defective construction or any other act
In Derby v. Degnon-McLean Contracting Co., 98 N. Y. Supp., 592, the plaintiff was injured by stubbing her toe on a board covering a hole in the asphalt, while in this case the size and location of the trench created a dangerous trap in the street. It being shown that the street was used by pedestrians at this point, the contractors owed the duty of protecting the public in the reasonable exercise of a proper use of the street.
In the case of McDonald v. Degnon-McLean Contracting Co., 109 N. Y. Supp., 519, the court said:
“Every heedless foot passenger who sought to cross the street at an unusual and unaccustomed place, and under conditions which would render all precautions, short of actual barriers, futile and ineffective,” can not hold the contractors liable.
McDonald undertook to cross the street thirty feet from the regular crossing. Berger was proceeding at a used crossing.
The railway company claims that the court erred in refusing to instruct a verdict for it; in refusing to give special charges requested; in its general charge; and that Berger was guilty of negligence that proximately caused the accident and his death.
The liability of the railway company must be determined by the duty it owed Berger as a passenger and as a member of the public. Its duty to him as a passenger was to use the proper degree of care to furnish him a reasonably safe place to
Both defendants in the court below submitted special requests for charges before argument. Of these requests, the following is an illustration r
“I say to you as a matter of law that one who leaves a place of safety and walks into a place of obvious danger, and is injured, does so at his own peril, and he can not recover against the one who is responsible for the creation of the place of injury, even though the same was the result of negligence.”
The word “obvious” in this charge assumes that the trench, after dark, was such, and was so lighted that it presented itself, challenging the attention of persons using the street; that it was plainly visible. As pointed out in stating the disputed facts, it would have been misleading to have told the jury that had Berger looked he could have seen and
It was mot error for the court to refuse to give the special charges. The rule stated covers the objection made to the general charge of the court and that will not be further considered.
On the claim of both the defendants below that Berger was himself "negligent, that question was submitted to the jury. This court would not be authorized to hold that a person who walked across the street at a point where it was being used by others, when there was another place some distance away, was guilty of negligence in law.
The judgment of the court below is affirmed.
Judgment affirmed.