FAILURE TO EXERCISE DUE CARE AT A RAILWAY CROSSING.

Court of Appeals for Morrow County.

#### J. C. Williams, Administrator, v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.*

Decided, January 22, 1917.

*Negligence—Milk Wagon Struck at Railway Grossing—Guest of the Driver Killed—Cause Taken from Jury for Failure of Decedent to Exercise Due Care.*

Where the decedent, who was riding in a milk wagon as it approached a railway crossing, did not direct the attention of the driver to smoke and steam from a passing train, which obscured the view of the tracks, and did not request him to wait until it had cleared away before attempting to cross, it is not error to take from the jury an action on account of the death of said decedent from the striking of the wagon by a train, the approach of which was obscured by said smoke and steam.

*T. B. Maleer*and *J. C.*Williamson, for plaintiff in error.

*Benjamin Olds*and *McBride &*Wolfe, contra.

*

Motion to dismiss petition in error, alleging a constitutional question, granted by the Supreme Court, May 29, 1917.

Ferñeding, J.

(Judges Ferneding, Kunkle and Airead of the Second District, sitting in place of Judges Shields, Powell and Houck of the Fifth District.)

This was an action by the administrator of Bertha E. Fields, deceased, to recover for wrongful death. The trial court instructed a verdict for the defendant below at the conclusion of the plaintiff’s testimony, and the plaintiff brings the case to this court on error.

The testimony in brief shows that the decedent, in company with Roy Cornwall, were traveling along- the highway in a milk wagon drawn by a team of mules. Roy Cornwall was driv*112ing and the decedent was sitting on the floor of the wagon, with her vision somewhat obscured by the wagon itself.

They stopped about ten feet from the railroad track to permit a freight train to passthereupon the team was started, but the vision of the track was obscured by the steam and smoke of the train which had just passed. Cornwall claims to have looked for an approaching train, but admits he was unable to see any distance because of the smoke and steam. It is not very clear whether the decedent looked or listened for an approaching train, but it is clear that she could have seen the smoke and steam had she looked and must therefore be charged with knowledge of the danger in going upon the track without waiting for the steam and smoke to clear away.

We think the case of the *B. & O. Railroad Company*v. *McClellan, Admrx.,*is decisive of this feature of the case. It is claimed, however, that the decedent being a guest was not charged with the negligence of the driver. Still, under the case of *Toledo Railway & Light Company*v. *Mayers,*93 O. S., 304, relied upon by counsel for plaintiff in error’, she was bound to use due care, and such due care would include the duty of observing the dangerous condition of the crossing immediately in front of the wagon in which she was riding and charge upon her the duty of notifying the driver and requesting him to wait until the smoke and steam cleared away.' This, the testimony shows, she did not do and was therefore guilty of negligence.

In addition, it fairly appears from the petition that Cornwall, tiie driver, and the decedent were engaged jointly in the particular enterprise at the time the fatal accident occurred. At least, the petition does not show that the decedent was merely a guest and without responsibility or control over the driving of the team.

Judgment affirmed.

Kunklb, J., and Allread, J., concur.