162 N.E. 623 | Ohio Ct. App. | 1926
Arthur D. Tyler, as administrator of the estate of Lucretia A. Tyler, deceased, brought an action in the court of common pleas of Franklin county against the Hocking Valley Railway Company for the alleged wrongful death of the decedent. Upon trial, the jury returned a verdict for the defendant company, and this proceeding in error is brought for a reversal of the judgment entered thereon.
Briefly stated, the evidence discloses that on February 2, 1925, at about 2 p.m., the defendant company was operating a passenger train at a speed of 45 miles per hour in a northerly direction while approaching a grade crossing known as Big Walnut crossing, which is located on the defendant's main line a few miles south of the city of Columbus. The highway at that point is an ordinary dirt and cinder road, and crosses the railroad almost at a right angle. The decedent was riding in an automobile as a passenger with one L.W. McCarley, and was *90 approaching the crossing from the west. The evidence shows beyond dispute that the crossing is in the open country, and that the approach of the train could be plainly seen by the occupants of the automobile when they were about 400 feet from the crossing and the train over 1,000 feet away. For over 400 feet immediately south of the crossing the track is elevated above the level of the ground, and then for some distance there is a cut of about 4 feet above which the train may be seen. One witness, Mrs. Ira L. Hundtz, saw the automobile as it passed in front of her house about 200 feet from the crossing, and at the same time she saw the train approaching, in plain view, about 600 or 800 feet away, and heard the whistle of the locomotive. The automobile, notwithstanding these facts, was driven upon the track ahead of the train.
It is claimed that the court below erred in permitting counsel for the defendant company to elicit from witnesses an opinion as to whether or not a speed of 45 miles per hour over the crossing in question was fair, reasonable, and proper. Clearly the action of the court in this respect was error. Ford's Adm'r. v. PaducahCity Ry. Co.,
It is also claimed that the court erred in refusing to give one of the plaintiff's special requests, in which he sought to apply the rule stated in the third paragraph of the syllabus of Penn.Rd. Co. v. Snyder,
It is also complained that the court erred in charging the law as to contributory negligence with reference to the plaintiff. Of course, under the law of Ohio, the negligence of the driver of the automobile cannot be imputed to the plaintiff's decedent, a passenger. Board of Comm'rs. of Logan County v. Bicher, Admx.,
It is also claimed that the court erred in not permitting the plaintiff to offer in evidence the following rule of the defendant company under the head of "Firemen," which reads as follows:
"They must, when on the road, and not otherwise properly engaged, keep a careful watch upon the track and instantly warn the engineer of any obstruction or signal."
We are of the opinion that it was not error to exclude this rule, for the reason that, if such a rule were properly made and promulgated and enforced, it would impose no duty upon a fireman of the defendant company not already enjoined by law. In other words, without the rule, the duty would rest upon the fireman to exercise ordinary care with reference to watching upon the track ahead and as to warning the engineer. With this rule ordinary care to keep a careful watch was all that was required.
We are of the opinion that there is no prejudicial error disclosed by the record, and the judgment should be affirmed.
Judgment affirmed.
ALLREAD and FERNEDING, JJ., concur. *93
WILLIAMS, J., of the Sixth Appellate District, sitting in place of KUNKLE, J., of the Second Appellate District.