1 Ohio App. 119 | Ohio Ct. App. | 1913
The action below was brought to recover damages for the wrongful death of Henry Graf, who was a passenger upon a car of The Cincinnati Traction Company and who was killed by a train on the railroad of the defendant company at the point where it crosses Eastern avenue at grade.
From the record it appears that the facts make out a case of concurrent negligence upon the part of both the plaintiff in error here and The Cincinnati Traction Company, against which latter company a judgment of the same amount as was given here against the plaintiff in error, viz., $10,000, was recovered in another case, and is brought into this record by exhibits attached to the bill of exceptions.
Plaintiff in error here relies upon the argument that because the distance between the west gate and the actual crossing of the tracks was more than fifty feet the stop to be made by the street railway company under the statute should have been east of the gate, and that therefore the invitation extended to the street car operatives to proceed across its tracks by reason of its open safety-gate was not the proximate cause of the injury, because under a- strict construction of the statute after the safety-gate had been passed the street railway car must again stop for the purpose of complying with Section 9125, General Code.
The fact that the traction company, through its conductor who failed to see the oncoming train, was negligent, is no excuse for the negligence of the plaintiff in error through its gate tender in opening the gates when the train was approaching and thus extending an invitation to the street car to advance (Ry. Co. v. Schneider, 45 Ohio St, 678), and the negligence of the two companies was so near together in point of time that they must be deemed concurrent.
Another point urged strongly by plaintiff in error was the fact, which developed in the trial
Under the terms of Section 10772, General Code, it is provided that an action of this character shall be for the exclusive benefit of the wife and children, but is to be brought in the name of the personal representative of the deceased for their benefit, and the jury may give such damages, not exceeding (at that time) $10,000, as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit the action was brought. This section, however, provides that the amount recovered shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment, in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiary and the laws of descent and distribution. If the amount of recovery here had been less than the amount fixed by statute, it would present a question much more difficult than it now does, because, as the suit was by the administrator, who is the representative of all the beneficiaries, if the recovery were less than the full amount it would not be deemed to cover any loss that might have been suffered by those children not referred to in the pleadings; but if the jury deemed the loss suffered by the two who were referred to with the widow to amount to the maximum that could be allowed, then nothing; in addition could be recovered on behalf of the two
Objection is also made by plaintiff in error to the paragraph in the charge of the court given by the judge presiding in the trial below, which has been previously criticized by this court in another case, viz.:
“You have the right to reject any evidence that you choose and consider only that which appeals to your sense of justice and of fairness.”
The record in this case shows but little controversy as to the facts. They were proven in considerable detail by plaintiff’s witnesses, and were not seriously controverted by defendant. While the language objected to is subject to criticism, used as it is in connection with the entire paragraph of which it is a part, we do not think that it is so prejudicial to defendant as to require a reversal here, nor do we find any error in the record so prejudicial to the defendant.
Judgment below will therefore be affirmed.
Judgment affirmed.