Thе railroad assails a judgment against it for injuries suffered by Lade in a railroad crossing accident upon the private property of the Standard Oil Company at Cleveland, Ohio, in which Lade, while driving a tractor and trailer for the Oil Company, was injured. The case was submitted to a jury after the denial of the railroad’s motion for directed verdict based upon the contention that Lade was guilty of contributory negligence, as a matter of law. A verdict for substantial damages followed. Neither in brief nor oral argument does the railroad deny its own negligence in the operation of its engine. It plants its case upon Lade’s negligence which it asserts was a contributing proximate cause of the accident and upon certain alleged procedural errors.
Uрon the property, where the collision occurred, the Standard Oil Company maintains a large warehouse some 86 feet wide and 150 feet deep. In the northerly face of the building arе three loading doors and along its easterly elevation is a railroad sidetrack close to and parallel with it. Sixty feet to the north of the warehouse is a brick driveway running approximately east and west and crossing the spur track about 60 feet from the northeast corner of the building. Lade’s vehicle, consisting of a tractor and trailer-van, had approached the warehouse on the roadway from the west and after crossing the spur-track had backed to the center door of its north front to pick up a load. While Lade was engaged in the loading operation, appellant backed a train of two tank cars propelled by a diesel engine along the east front of the warehouse to spot the tank cars at one of the loading platforms on that side. From where Lade was engaged, he could not see the train because it was concealed by the corner of the warehouse. There is dispute аs to the distance the train had proceeded south of the corner of the building, the appellant contending that the train was standing 25 feet south of its edge while the appellee cоntended the distance was 80 feet. After picking up six drums of oil, Lade set forth to move his vehicle to another building of the Oil Company. To accomplish his mission he was obliged to travel in a northerly direction approximately 60 feet to the road, then to swing right thereon and drive east approximately 40 feet to the crossing. When he was within six or seven feet from the track, he reduced his speed from about 4 miles per hour to 2 miles per hour, looked to his left and right, saw nothing, and proceeded over the track. When almost two-thirds of the way across with his lengthy vehicle, it was struck by the *950 diesel, now relieved of its tank cars, at about one-third of the length of the van from the rear. There is dispute in the evidence as to the speed of the diesel immediately preceding the collision, the appellee contending that the engine was moving at about 20 miles per hour and the appellant contending that it was moving but 4 miles an hour. There is also dispute as to whether the diesel and the truck started at the same time, as the appellant contended, or whether the diesel was at rest when the appellee made his observations in approaсhing the track. No employee of the railroad was protecting the crossing although there was evidence that it was usually so protected. The diesel was equipped with both bell and horn. There is evidence that neither signal was used, the railroad conceding that it was not customary to use the horn but insisting that the bell was being rung during the entire movement of the diesel.
It is the contention of thе railroad that if Lade had looked to the right at a point six or seven feet from the crossing he would have been able to see the diesel approaching and traveling at a speed of two miles an hour, in low gear, he could have stopped his vehicle in time to avoid the accident and, failing to do so, he was negligent with his negligence, contributing proximately to the аccident. In this contention, it relies upon Ohio law wherein it is held that there is a duty .upon a traveler upon the highway, when approaching a steam railroad crossing, to look and listen for thе approach of trains at a place and in a manner that will make the looking and listening effective, Detroit, T. & I. R. Co. v. Rohrs,
In the applicаtion of legal principles, long experience has demonstrated that there are few absolutes and that every ease must be decided upon its peculiar facts. The law in Ohio is nоt otherwise. While an automobile driver is under a duty to look and listen before he crosses a railroad track of whose existence he is aware, it is not his absolute and unqualified duty to stop-before he goes on the track, unless his looking and listening discloses the approach of a moving train. Robinson v. Pennsylvania R. Co.,
Among the prоcedural errors alleged, the appellant contends that the court should have excluded the stenographic record of Lade’s statement to the defendant’s claim agent, after the railroad had called the court reporter as a witness to establish that Lade had made a contradictory statement. Upon the plaintiff’s motion, the entire statement was аdmitted and the defendant claims it was thereby prejudiced, relying upon Prok v. City of Cleveland, Ohio App.,
A final question of procedure relates to the failure of the court to give defendant’s written request in terms of the Ohio rule as to looking and listening where such looking and listening would be effective. We have examined with care the instructions of the court to the jury. While not given in the specific language of the written request, we think the court fairly instructed the jury upon the issue of contributory negligence ; that, even if such instruction was in any sense inadequate, such inadequacy was waived by the stipulation entered into between the parties.
Judgment affirmed.