RESPONSIBILITY OF MOTORMAN FOR STRIKING ONE ATTEMPTING TO CROSS THE TRACK BEFORE HIM.

Court of Appeals for Licking County.

#### George R. Taylor, Administrator of the Estate of Martha B. Taylor, Deceased, v. The Ohio Electric Railway Company.*

Decided, October Term, 1918.

*Negligence*— Woman *Killed While Crossing Intentrban Trach in Open Country*— Motorman *Charged With Ordinary Care Only*— Charge *of Court*— Last *Chance.*

1. A motorman on an interurban car can not be held responsible under an inexorable rule and as a matter of absolute duty to discover under any and all circumstances the presence of persons on or near the track before him who may be struck by his car, and where he maintained as vigilent a lookout as was consistent with the paramount duty which he owed to the passengers in his charge, he can not be held responsible for failing to discover what he did not and could not see by the exercise of ordinary care.

2. A charge of court which holds a motorman responsible for failure to see a person on the company’s right-of-way in time to avoid injuring him, is too broad and to refuse to give it to the jury is not error.

3. Inconsistent charges do not constitute ground for reversal unless they are prejudicial and relate to matter which is material, and where it is reasonably certain that the charges given did not come within this rule, ground is not afforded for setting aside a verdict which otherwise ought not to be disturbed.

4. Where one having an unobstructed view of a car approaching at high speed misjudges the time required for the car to pass him and in attempting to cross in front of it is struck and killed, a verdict in favor of the company will not be set aside on the ground of the -weight of the evidence.

*Kibler & Kibler',*for plaintiff in error.

*J. B. Fitzgibbon*and *Montgomery & Blade,*contra.

*

Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court February 11, 1919.

*402Shields, J.

In this proceeding it is sought to reverse the judgment of the court of common pleas because of certain alleged errors occurring upon the trial of said action in said court, as appears in a petition in error filed in this court for such reversal.

In said action a recovery in damages was sought by the plaintiff in error as plaintiff against the defendant in error as defendant for the death of Martha B. Taylor on the 25th day of May, 1915, caused by the alleged negligence of the defendant in error, the facts and circumstances of which are referred to in this opinion.

The defendant by answer admitted that the said decedent was struck by one of its cars and instantly killed at the time and place mentioned, but it denied the negligence charged and averred contributory negligence, which was denied by the plaintiff in his reply.

A verdict and judgment was recovered by the defendant company below.

While the petition in error alleges some thirteen separate grounds of error, three grounds only were argued to this court, namely:

1. The refusal of the court below to charge the jury before argument as requested by the plaintiff below.

2. Error in said court’s charge to the jury.

3. That the verdict was manifestly against the weight of the evidence.

It appears that the decedent who before and up to the day of her death resided in Newark, Ohio, had left her home on said day to visit at the home of one John Fullerton, near Hebron, in said county, where a friend of hers had just died, and where other friends of the deceased friend were also gathered. The Fullerton home was located near the defendant company’s line of road, perhaps some thirty or forty feet from its tracks, where there was a signal stop known as “The Oak Stop,” and where persons at the Fullerton home boarding the defendant company’s cars, going north, were obliged to cross the two tracks of said company at a distance of some fifty feet from said home. The customary signal to the passing cars to stop for passengers *403awaiting passage was given by the waiving or throwing up of the hands or other like means. On the day in question it appears that the decedent desired to return to her home in the. early evening of said day and being informed that a car was approaching, which'could be seen at a considerable distance on a straight track from the Fullerton home, she hurriedly arose from the table where she was eating and signaling the motorman of the car with her hands, and perhaps a handkerchief, with an accompanying friend, while in the yard of the Fullerton home, she hastened to cross the defendant company’s tracks in plain sight-of and within a short distance of a rapidly approaching car to reach the opposite side to board the same, and in the attempt to do so she was struck and killed by one of the defendant’s cars, which was then running at the rate of thirty-five or forty miles per hour. As in other like eases the eye witnesses to the tragic end of the decedent in this case differ in some of the particulars of the accident, some testifying that the decedent was warned against the danger of crossing the tracks at that timé, in the face of the fast approaching car, which could readily be seen before she attempted to cross, and that she was running across the tracks when struck when the car was about two hundred feet distant from her, while others testify to a different state of facts.

Upon an examination of the testimony given upon the trial on this branch of the case, if we were sitting as a jury to judge of the effect of this testimony, we would feel compelled to find that death resulted from a mistaken judgment based upon a miscalculation of the speed of the car, a conclusion reached by the jury, perhaps, as evidenced by their verdict. In this connec-. tion is might be remarked that it is a matter of common knowledge, emphasized by the daily record of accidents happening upon railroads and from the operation of automobiles upon the public highways, that many such accidents are due to a misconception of the extent of space traveled by such vehicles in an incredibly short period of time, and as a result accidents follow. Here it is admitted that the car in question was traveling at the rate of from thirty-five to forty miles per hour; hence it is apparent that á person about to cross the track of said company to take *404passage on the car from the opposite side would be required to so cross at a considerable distance in advance of such approaching car in order to cross safely and to avoid accident. But contributory negligence, when the evidence is conflicting, is a question of fact for the jury, and leaving this feature of the case, counsel for plaintiff in error argued that although the decedent may have been primarily negligent, the petition presents a case on which the plaintiff in error claims he was entitled to have certain propositions of law submitted to the jury before argument, which the court refused to give. Here the issue of what is known as the “last chance” is claimed to be raised by the averments in plaintiff’s third amended petition and, as claimed, was supported by the evidence, and it is urged that the court below erred in refusing to give to the jury in charge several requests containing certain propositions of law submitted on behalf of the plaintiff in error before argument in relation to such issue. In *Drown*v. *Traction Co.,*76 O. S., at page 249, the judge announcing the opinion in that case, among other things, says:

> “It is clear, then, that the 'last chance’ rule should not be given as a hit or miss rule in every case including negligence. It should be given with discrimination.”

The doctrine of “last chance” in the evolution of modern jurisprudence, as defined by modern text-writers and interpreted by courts, seems to extend the long recognized rule as to the effect of combined contributory and concurrent negligence, and affords a right of action in damages to the injured person, although primarily negligent, if the defendant after discovering, or by the exercise of ordinary care could have discovered, the danger of’ such person and fails to use such care to avoid injuring such person. This view contemplates that the act of negligence of the injured party was not heedless or wilful, for certain it is that the law does not place a premium upon one’s own wanton or rash act and east upon another the responsibility of such act, but while such negligence creates the condition of danger, the law permits a recovery in damages for the subsequent negligence of a defendant causing such injury after becoming aware,'or in the *405exercise of ordinary care could have become aware, of such danger.

Of the eight requests submitted on behalf of the plaintiff in error to be given in charge to the jury before argument, Nos. 4, 5, 7 and 8 were so given and Nos. 1, 2, 3 and 6 were refused.

Request No. 1 was as follows:

> “The court charges you that the plaintiff can recover in this case, notwithstanding the decedent may have been guilty of negligence in crossing in front of the moving car, if the motorman, after he became aware, or ought to have become aware, of her position, failed to use ordinary care to avoid injuring her. ’ ’

In their brief, counsel for plaintiff in error cite as authority for such instruction: *Railroad Co.*v. *Kassen,*49 O. S., 230; *Erie Railroad Co.*v. *McCormick, Admx.,*69 O. S., 45; *Drown*v. *Traction Co.,*76 O. S. 234; *Traction Co.*v. *Brandon, Admr.,*87 O. S., 187; *West, Receiver,*v. *Gillette, Admr.,*95 O. S., 305.

In *Railroad Co.*v. *Kasáen,*cited, the court announced the rule that:

> “It is a well settled rule of the law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.”

In the case of *Erie Railroad Company*v. *McCormick, Admx.,*cited, the court laid down the following rule:

> “In an action against a railroad company by one who, by his own fault is upon its track and in a place of danger, to recover for a personal injury caused by the failure of its employees operating one of its trains to exercise due care after knowledge of his peril, it is necessary to show actual knowledge imputable to the company. *Railroad Co.*v. *Kassen,*49 Ohio St., 230, distinguished.”

In *Drown*v. *Traction Co.,*cited, it was held that:

> “The doctrine of ‘last chance,’ as formulated in *Railroad Co.*v. *Kassen,*49 Ohio St., 230, paragraph one of syllabus, does not *406apply where the plaintiff has been negligent, and his negligence continues, and, concurrently with the negligence of defendant, directly contributes to produce the injury; it applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence by the plaintiff so that the negligence of defendant is clearly the proximate cause of the injury and that of the plaintiff the remote cause.”

In *Traction Co.*v. *Brandon, Admr.,*cited, the third syllabus reads as follows:

> “Where the motorman of a street car being operated on a public street in a much frequented part of a city, discovers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track at a street crossing, in front of such car, it is the motorman’s duty to use ordinary vigilance to stop or cheek the car in order to avoid collision; and the fact that such driver may have omitted to look for the approach of the car will not, as matter of law, defeat his right to recover for injury from a collision with such ear if the motorman has not used such vigilance.”

In *West, Receiver,*v. *Gillette, Admr.,*the court held that:

> “Where a collision occurs and such driver is injured and the undisputed evidence shows that the motorman actually saw such vehicle and had it continually in view for a considerable distance from the crossing, it is for the jury to determine whether he exercised such vigilance and care in the circumstances; and the fact that the driver may have been originally negligent in the manner of going on the crossing will not, as matter of law, defeat his right to recover for the injury, if the motorman has not used such vigilance after discovering him.”

Of course, the rule of law announced in each of the foregoing cases was intended to apply to the particular facts in such cases. While the last three were crossing cases, the facts in each case were essentially different. Without taking time to discuss the history of these cases or the principles of law laid down therein, we are not persuaded that the Supreme Court of this state has as yet announced the doctrine contended for by the plaintiff in error, as embraced in said request No. 1. As we read them, the *407last three cases cited do not bear out the construction contended for, certainly not in the last case, for there the motorman in charge of the car actually saw the horse and buggy several hundred feet before the impact at the crossing, which fact eliminated from that case the question of vigilance enjoined by the law upon a railroad company with a view to discover persons éxposed to danger at a highway crossing. Nowhere in the eases cited do we find that the court has held it to be an inexorable rule and as a matter of absolute duty that a motorman shall be held to accountability under any and all circumstances for failing to discover that which in the exercise of ordinary care he did not and could not discover, or as stated in said request ‘ ‘ or ought to have become aware of.” True, this language was used in the Kassen case referred to, but Judge Shauck in announcing the opinion in the McCormick ease in reviewing the Kassen case on page 54 says:

> “The phrase ‘ought to have been aware’ manifestly applies to those in charge of the following train, and implies the duty of the company to communicate to them its actual knowledge of Kassen’s danger. # * * It is entirely clear, therefore, that the liability of the company was placed upon the sole ground that after receiving actual notice that Kassen was upon the track and in a position of peril, it failed to use the means at hand to avoid injury to him. The doctrine of the case can have no application when neither the company nor its employes operating the train by which the injury is inflicted may be charged with actual knowledge. The rule of liability applies only when there is actual knowledge of those operating the train inflicting the injury, which knowledge is imputed to the company derived through other means, with opportunity to communicate it to those operating the train. By introducing into the instruction given the phrase, ‘if the engineer in charge of the train ought, by the exercise of ordinary care, to have seen the deceased in his perilous position,’ and by other expressions in the charge involving the same conception, the court gave to the jury an erroneous view of the law. ’ ’

It appears that the foregoing opinion was concurred in by Judge Spear who announced the opinion in the case of *Traction**408*Co.*v. *Brandon, Admr.,*and by Judge Davis who announced the opinion in the case of *Drown*v. *Traction Co.,*referred to.

In the opinions announced in both the *Drown*v. *Traction Co.*and *West, Recr.,*v. *Gillette, Admr.,*cases the following text from Vol. 2, Thompson on Negligence, Section 1629 was cited with approval:

> "Although a person comes upon the track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him, they are bound to do so. And, according to the better view with reference to injuries to travelers at highway crossings — as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no. legal rights to be- — -the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them.”

As here stated, "the servants of the railway company are bound to keep a vigilant lookout, ’ ’ but where such vigilance has been exercised by the motorman consistent with his paramount duty owing to passengers in his charge, as held in the Kistler case, 66 O. S., 326-337, has not the duty imposed by the law upon him been discharged! Opportunity to know may not be knowledge. Without pursuing this subject further we think that the epitome of the law on this subject is correctly and concretely stated in Thompson on Negligence, referred to, which was approved by Judge Johnson in the ease of *West, Rec’r,*v. *Gillete, Admr.,*as being "well founded in reason and authority.”

As each case rests upon its own facts, let us inquire what the facts were on this branch of the ease as shown by the record in the case at bar. As stated, "Oak Stop” was a signal stop in the open country where the defendant company’s cars stopped on signal. While the failure of the motorman to give a signal or to reduce the speed of the car at said signal stop are alleged in the plaintiff’s said amended petition as contributing causes *409to said decedent’s death, the failure of the motorman to discover the presence of the decedent at or about said stop was specifically-urged in argument as the proximate cause of said death. Passing the circumstances under which the decedent undertook to cross the tracks from the Fullerton home, to which we have already referred, it appears that in running from Buckeye Lake to Oak Stop the ear was running at the rapid rate mentioned, and it appears that C. T. Hayden, the motorman in charge of said car, testified as follows:

> “Do you remember about what time the accident occurred? A. It was in the evening but I don’t remember the time.

> Q. Where were you coming from with your ear. A. Buckeye Lake.

> “Q. Where did you first see Mrs. Taylor? A. Well, she was coming through the little gate by the roacl crossing.

> “Q. At that time how far was the ear from the crossing, to the best of your knowledge ? A. One hundred and fifty to two hundred feet.

> “Q. Now, I wish you would state fully and in detail what you did when you saw Mrs. Taylor at the gate, or coming through the gate. A. I blew the whistle, shut off the power and reversed the car.

> “Q. What did Mrs. Taylor do? A. Well, I don’t remember. o

> “Q. Was there any one in the compartment where you were at that time? A. Not to my knowledge.

> “Q. Did you see the ear strike Mrs. Taylor ? A. Positively not.

> 11Q. How far did the car run beyond the crossing after Mrs. Taylor was struck? A. Between two hundred and fifty and three hundred feet.

> “Q. That is, before it came to a stop? A. Yes, sir.

> “Q. Are you employed by the Ohio Electric at this time?

> A. No, sir.

> Cross-examination.

> * * * *

> 1' Q. Who was your conductor ? A. W. H. Smith.

> “Wasn’t he in the vestibule with you? A. No, sir.

> “Q. Isn’t it a fact that from the trestle to the point where *410you struck Mrs. Taylor, you were talking with some one in that vestibule the whole way from the trestle? A. Positively not.

> “Q. When you approached this crossing did you intend to stop there? A. I didn’t see any one that wanted on until we were within a hundred and fifty or two hundred feet.

> “Q. You didn’t intend to stop? A. There was nobody flagging.

> ‘‘Q. Because there was nobody there, flagging you, you didn’t intend to stop as you came there ? A. No.

> “Q. Did you see any one waiving about that gate on the left hand side of the track the direction you were coming? A. I didn’t. She was running somewhere through the gate when I first seen her.

> “Q. My question is, did you see any one waiving to you standing in the neighborhood of that gate as you approached that crossing ? A. I did not.

> 1 ‘ Q. Did you see any one at or near the gate at the time you saw Mrs. Taylor? A. I don’t remember of seeing any one.

> “Q. Does that mean that you didn’t or did? A. I didn’t.

> ‘ ‘ Q. And at no time before you got to within a hundred and fifty or two hundred feet of that crossing did you see any signal? A. I did not.

> ‘ ‘ Q. Now, as you approached that crossing, were you in your proper place? A. Yes, sir.

> “Q. And you claim you kept a proper lookout? A. I did.

> ‘‘Q. And yet you didn’t see Mrs. Taylor, or any other woman. A. I did not. *

> ‘ ‘ Q. Now, when you saw Mrs. Taylor, what did you do ? A. I shut off the power.

> “Q. Why? A. She was running toward the car.

> “Q. You had no signal from her ? A. I didn’t see any.

> “Q. And of course you didn’t in that 150 or 200 feet— you didn’t slacken the speed much before you got to the crossing? A. I couldn’t say how much it was slackened.

> “Q. You shut off the power? A. Shut off the power and reversed the motor.

> “Q. Now, Mr. Hayden, there was nothing to prevent your view of this track at any time after you crossed the trestle ? A. A misty rain on the windows.

> !iQ. Didn’t you have the windows opened? A. I did not.

> “Q., How do you know? Do you remember that' fact? A. The windows can’t be opened.

> “Q. So, your view was obstructed, was it? A. To a certain extent.

> *411“Q. Was it raining at the time of the accident? A. Justa misting rain.

> “Q. How long had it been raining? A. Before we left Buckeye Lake.

> “Q. Now, Mr. Hayden, when you first saw Mrs. Taylor she was to the left of the gate as you approached? A. Yes, sir.

> “Q. Did you see anything like a handkerchief in her hand? A. I did not. ’ ’

During the trial one Leonard Hoskinson, a witness for the plaintiff, testified that he was sitting in a certain seat in the ear where he could see and did see the motorman and conductor talking together in the front vestibule of the car, at some little distance from the scene and immediately before the time of the accident, and that the motorman looked behind him at times during such talk, as tending to show that he was not engaged in keeping a vigilant lookout in front of the car; but other witnesses in addition to the motorman and conductor testified that the said Hoskinson did not occupy the seat in said car as claimed by him, and that the motorman and conductor were not so engaged in conversation at said time, whose testimony appears to have been believed and accepted by the jury as the true and correct statement of this disputed fact.’

Request No. 2 reads as follows:

> “The Court charges you that if the motorman saw Mrs. Taylor upon the company’s right of way, or could by the exercise of ordinary care have seen Mrs. Taylor in said position in time to have slackened his speed or stopped his car and avoid the injury, then your verdict should be for the plaintiff.”

This request is open to the objection that it extends the range of vision of the motorman to the company’s right of way. It was said in argument, and not disputed, that said company’s right of way at this point was over forty feet. The presence of one on such right of way, if seen, would rather repel than raise the presumption that such person would go upon the company’s tracks in the face of a rapidly approaching ear at high speed. As was said by Judge Burket in announcing the opinion in. the Kistner case, 66 O. S., 326-336:

> *412“It is the .duty of an engineer on a train to keep a lookout on the track ahead of him, and he is not expected to see anything on the sides of the right of way farther than his eye may take in objects within the range of vision while looking ahead along the track,” citing *Railroad Co.*v. *Elliott,*4 O. S., 474, 476, and other authorities.

The principle here announced, applicable to an engineer on a locomotive, is alike applicable to a motorman operating an interurban car. The request, as a proposition entire, was too broad in its statement and was therefore properly refused."

Request No. 3 was properly refused for the same reason as was request No. 2.

Requests Nos. 4 and 5 were given as requested.

Request No. 6 was properly refused for the same reason as request No. 1.

It was also urged that the court below erred in its general charge to the jury, and our attention was specially called to what are claimed to be inconsistent instructions on the subject of contributory negligence and to the speed of interurban ears in the open country. After giving request No. 5 on behalf of the plaintiff in error as appears on page 362 of'the record, it was contended that the court afterward gave another and a contrary instruction on behalf of the defendant in error, which is as follows :

> “If you find that the decedent Martha Taylor was negligent, and that the defendant was negligent, and that the negligence of both was contemporaneous and continuing until *after*the injury, and that the negligence of each was a direct cause of the injury without which it would not have occurred, the plaintiff may not recover and your verdict should be for the defendant.”

The charge proceeded upon the theory that the petition "and evidence presented a case involving the issue of the “last chance.” The reasoning adopted by Judge Davis in announcing the opinion in the case of *Drown*v. *Traction Co.,*that—

> “If the plaintiff and the defendant both be negligent and the negligence of both be concurrent and directly contributing to *413produce the accident, then the case is one of contributory negligence pure and simple. But if the plaintiff’s negligence merely put him in the place of danger and stopped there, not actively continuing until the moment of the accident, and the defendant either knew of his danger, or by the exercise of such diligence as the law imposes on him would have known it, then, if the plaintiff’s negligence did not concurrently combine with defendant’s negligence to produce the injury, the defendant’s negligence is the proximate cause of the injury and that of the plaintiff is a remote cause, ’ ’

seems to have been followed in framing said request so far as it applied to the question of contributory negligence. So far as it goes, we see nothing wrong in this instruction, but it is objected to because it does not include the qualifications of the “last chance” rule, which nullifies the defense of contributory negligence in a proper case. True, this might have been given under the issue raised by the pleadings in the case, as claimed by the plaintiff in error, but it was a request submitted by the defendant in error, and yet the court in its general charge instructed the jury in accordance with the instruction given in said request number five, submitted by the plaintiff in error. To constitute ground of reversal where inconsistent charges have been given, they must be to a material matter and prejudicial. Here it cannot be said that the subject-matter of the instruction was not material, but was it misleading and prejudicial in view of the instruction given in said request number five and the same instruction in substance repeated in the general charge? 'We do not think it was, but even assuming that it was, we think that the verdict and judgment below was right and that said judgment ought not to be disturbed on this account. *Way & Co.*v. *Langley,*15 O. S., 392; *Banning*v. *Banning,*12 O. S., 437.

It was objected also that the following instruction as the same appears on page 365 in the record, given on behalf of the defendant in error, was inconsistent with request No. 4, given on behalf of the plaintiff in error on page 364:

> “ It is not negligence for the defendant to run its car on its own right of way in the open country at a high rate of speed.”

*414It is contended that this instruction is contrary to a holding made by the Supreme Court in the Kistler case referred to. The instruction contained in said request appears to be general and as such it appears to be in harmony with the proposition laid down in the third syllabus of said case. A different rule would apply in a case where the motorman of a car discovered, or in the exercise of ordinary care in keeping a proper lookout could discover, a person at a public crossing or at a customary stopping place. We fail to find any ground of reversible error in this respect.

It was also urged that the verdict of the jury was against the manifest weight of the evidence. Because of the loss of a life we have been led to carefully read and examine this record, not in the hope of finding error against the defendant in error that would authorize us as a reviewing court to set aside the verdict, but to ascertain whether or not the decedent’s legal representative had a fair trial under the forms of law provided in such eases. Accidents by violent death usually evoke sympathy, and such undoubtedly was the natural feeling shared by the jury under a recital of this tragic occurrence, but sympathy has no place in the administration of the law, and under the evidence presented in this case, under the instructions of the court, we are of the unanimous opinion that the verdict of the jury was a proper and just one. As we read this record, the decedent, with a full and unobstructed view of an approaching car running at a high rate of speed, attempted to hastily cross the tracks of the' defendant in error at an unsafe and dangerous distance from said car, and not being discovered by the motorman in time to check its speed to protect her from injury, she was struck and killed by said car. Unsympathetic and uncharitable though it may seem, the law affords no reparation in such cases.

Judgment affirmed.

Powell, J., and Houck, J., concur.