AUTOMOBILE STRUCK BY INTERURBAN CAR. AT COUNTRY CROSSING.

Court of Appeals for Montgomery County.

#### The Ohio Electric Railway Co. v. W. C. Mendenhall.

Decided, July 6, 1917.

*Negligence—Questions Pertaining to Negligence of Motorman and Contributory Negligence of Driver of an Automobile—In Collision at a Country Crossing—Charge of Court.*

1. In an action against an interurban railway company for injuries to the plaintiff from being struck by a car as he was attempting to drive across the track in an automobile, questions pertaining to the negligence of the motorman and contributory negligence of the plaintiff are for the jury, and it is not error to refuse to direct a verdict.

2. Nor is it error to refuse to give a special charge in such a case to the effect that the duty was not imposed on the motorman to blow his whistle upon approaching the crossing “unless he *saw*someone was about to cross the track.”

3. And in view of the principle that it is not the duty of the court to determine the question of negligence, it is not error to refuse to give the charge “under such circumstances I charge you that the *377operation of a car at a high rate of speed, if you find by a preponderance of the evidence that the car was so operated, would not be such negligence as would entitle plaintiff to a verdict.”

*McMahon & McMahon,*for plaintiff in error.

*Boy G. Fitzgerald,*contra.

Kunkle, J.

Defendant in error sought to recover judgment against plaintiff in error in the sum of $20,000 for personal injuries and damage claimed to have been sustained by reason of the negligence of the employees of plaintiff in error in the respects stated in the petition.

The ease was tried and submitted to a jury with the result that a verdict was rendered in favor of defendant in error in the sum of $5,000. Motion for a new trial was overruled; judgment was rendered upon the verdict and from such judgment error is prosecuted to this court.

In brief, it appears from the record that in the afternoon of August 13, 1914, Dr. Mendenhall, the defendant in error, was driving eastwardly on the Eaton pike, for the purpose of visiting a patient who resided on the driveway which runs northwardly from the Eaton pike near a point on the line of the railroad of plaintiff in error called Crown Point. At this place the tracks of plaintiff in error are construeed along the north side of the Eaton pike. 'The track is not constructed upon the traveled portion of said pike 'but upon the right-of-way of the pike.

Defendant in error was driving in an automobile and in order that he might reach the home of his patient was obliged to cross the track of plaintiff in error at this point, and in so doing was run into by one of the cars of plaintiff in error and was injured. Plaintiff in error insists that it is not responsible for the accident. The testimony shows that defendant in error was seriously injured. No claim is made in the brief of counsel for plaintiff in error that the verdict is excessive. Plaintiff in error contends that it is not liable for the injury in question.

Defendant in error in his petition alleged three grounds ofv negligence upon the part of the employees of plaintiff in error, namely:

*3781. That the rate of speed at which, the ear was being operated was excessive.

2. That no signal was given of the approach of the car.

3. That a proper lookout was not maintained by the motorman in charge of this car.

*We*have carefully read the record in this case, but shall not attempt to quote therefrom in detail. It is sufficient to say that a number of witnesses tesified that this ear was being operated at from 40, 50 and 60 miles an hour at the time of the accident. 'There was also testimony tending to show that another employee of plaintiff in error was standing in the doorway immediately behind the motorman talking with the motorman at and about the time of the accident. There is also testimony tending to show that no signal was given of the approach of the car until just about the time of the crash, *i. e.,*the collision between the automobile and the traction car.

Plaintiff in error introduced witnesses contradicting such evidence. The motorman testified about. blowing the whistle for this crossing (page 196) :

‘‘Q. Go ahead. A. When I saw the machine running along side I blew for the crossing, which we naturally do that anyhow; and the next I noticed his wheels turned; that was the first I noticed him turn in at all; I just threw up the emergency break and whistled and reversed the car; by that time it was done.”

Counsel for plaintiff in error rely upon the following alleged errors for a reversal of the judgment:

1. Eefusal of the trial court to direct a verdict.

2. Eefusal to give certain special charges requested.

3. Error in the general charge of the trial court.

In regard to the first claim we think it-is sufficient to say that the question of the negligence of plaintiff in error and the contributory negligence of defendant in error were questions for the jury to determine from all the facts and circumstances disclosed by the testimony, and under proper instructions from the court.

*379Under the decision of our Supreme Court in the case of *Railway Co.*v. *Weingartner,*93 O. S., 124, and other decisions of the Supreme Court, we think the trial court. properly submitted to the jury the question of the negligence of plaintiff in error and the contributory negligence of defendant in error.

Plaintiff in error insists that the trial court erred in refusing to give special charges numbers 1 and 2, before argument of counsel, as requested by plaintiff in error.

Assuming that the facts stated in special charges numbers 1 and 2 are correct (although this fact is disputed by counsel for defendant in error), we are of opinion that the trial court did not err in refusing to give special charge number one for at least the following reason:

This special charge concludes with the following paragraph:

Under such circumstances I charge you that there is no duty imposed upon the motorman to blow his whistle on approaching said crossing unless he saw some one was about to cross the tracks, and his failure so to do, if you ñnd by a preponderance .of the evidence that he did so fail, would not be such negligence as would entitle plaintiff to a verdict.”

The motorman claims that he blew the whistle for the crossing. Other witnesses testified that the whistle was blown for this crossing. 'The motorman seems to have considered that some duty devolved upon him to blow the whistle for the crossing in question. We think the trial court was justified in refusing this special charge at least for the reason that it eliminates any degree of care upon the part of the motorman in discovering whether any one was or was not about to cross the tracks at the point in question. It imposed no duty unless the motorman saw that some one was about to cross the tracks.

Under all the circumstances disclosed by the record we think it was the duty of the motorman to at least exercise some degree of care for the purpose of discovering whether any one was about to cross the tracks into this driveway. The charge instructs the jury that no obligation exists unless the motorman saw that some one was about to cross the tracks.

This charge would permit the company to escape liability if the motorman had not been looking at all, or had not made any *380effort to discover whether any one was about to cross over this driveway. We think the trial court properly refused to give special instruction number one.

As to instruction number *2,*again assuming that the facts stated in this charge are correct, which fact is disputed by counsel for defendant in error, we think the concluding paragraph of this special charge does not correctly state the law upon the subject.

The paragraph referred to is as follows:

“Under such circumstances I charge you that the operation of a car at a high rate of speed, if you find by a preponderance ot the evidence that the car was so operated, would not be such negligence as would entitle plaintiff to a verdict.”

It was not the duty of the trial court to determine the question of negligence, but it was the duty of the jury under proper instructions from the court and under all the facts and circumstances disclosed by the evidence, to .determine the question of negligence.

It is further claimed that the trial court erred in charging the jury upon the question of wanton and willful negligence.

The trial court stated to the jury that there was no evidence to support the charge of willful negligence, but did instruct the jury in reference to the question of wanton negligence.

'This was an issue under the pleadings in the case. This issue was explained by the court in its general charge to the jury. At the request of counsel for plaintiff in error the issue of wanton negligence was called to the attention of the jury by the concluding paragraph in one of its special requests, namely:

“If you find, therefore, by a preponderance of the testimony that if he had looked at such point before attempting to cross the tracks he could have seen the car approaching in time to have stopped the car and avoid the accident, his failure to do so was such negligence directly contributing to the accident as would prevent his recovery and your verdict should be for the defendant, unless you find from a preponderance of the evidence defendant at the "time and place of the accident was guilty of wanton disregard of plaintiff’s rights as charged by plaintiff.”

*381This special instruction was given before argument at the request of counsel for plaintiff in error and recognizes one of the. issues in the case, namely, that of wanton negligence.

The trial court in the general charge to the jury also defined what would constitute wanton negligence, and in other ways referred to this issue. We have considered the charge of the trial court in the respects complained of’by counsel for plaintiff in error and when the charge as a whole is considered we find no error therein which we consider prejudicial to plaintiff in error.

Finding no prejudicial error in the record the judgment of the lower court wll be affirmed.

Allread, J., and Ferneding, J., concur.