NEGLIGENCE.

[Hamilton Circuit Court,

October Term, 1897.]

Cox, Smith and Swing, JJ.

#### C., H. & D. R. R. Co. v. Rosa Wagner.

1. Verdict Against Railway Company Manifestly Against Weight of the Evidence.

In an action for injuries claimed to have been the result of the negligence of a railroad company, at a station where there were double tracks, in not removing snow therefrom, the evidence showed that the accident occurred shortly after noon, that the platform of the station had been cleared of snow and Shat several paths were made, affording a safe crossing from the first track to She second; but that plaintiff did not cross on the paths but waded through the snow and in doing so, slipped on one of the rails and was injured: *Held,*that a verdict against the railway company was manifestly against the weight of the evidence.

8. Defendant’s Failure to Remove Snow from its Tracks not Negligence *per se.*

A charge that the defendant, in an action as above stated, is only bound to exercise ordinary care in view of dangers to be apprehended, and that the failure of defendant to remove snow from its tracks is not negligence *per se.*

*313Error to the Court of Common Pleas of Hamilton county.

Smith, J.

The plaintiff in error seeks the reversal of a judgment, rendered against it in favor of the defendant in error, on the grounds that the trial court erred in admitting and rejecting evidence, and in the charge given to the jury, and in refusing to charge as requested, and in overruling the motion for a new trial, based on these grounds, and the additional ground that the verdict was against the evidence.

The petition of the plaintiff' in substance averred, that on the day in question she purchased a ticket for passage on defendant’s road irom Cumminsville to.Elmwood, and waited at the station for the train on which she was to take passage:- That between the track on which her train was to come, (the north bound), was another track, (the south bound), and that this track, and the way over it to the north bound track, was by the negligence of the defendant company, left covered with snow, so that the tracks could not be seen, and the same were not planked or guarded or protected in anyway, or so arranged as to prevent injury to anyone crossing said track in order to get to the defendant’s train as aforesaid. She further averred that when her train stopped, she, upon the direction of the defendant company, started across to the same, and by reason of such negligence on the part of the defendant, without any knowledge on the part of any such obstructions, and without fault on her part, she stumbled, slipped and fell, and was severely injured. The answer of the company admitted that it was a corporation as alleged, but denied all the other averments of the p-tition.

We are of the opinion that the verdict of the jury, which must have found that there was negligence on the part of the defendant company, was manifestly against the weight of the evidence on this point. This accident occurred shortly after noon. The plaintiff had been at the station house of the company for about two hours waiting for her train. She knew that her train was to come on the track farthest from the station, and that the south bound track was between the station and the north botind track, and that she would have to cross one track to reach her train. And-one train passed south to her knowledge while she was waiting in the station. There had been quite a heavy fall of snow the day and night before, and it was still lying on the ground. How deep it was can not be accurately stated, as the witnesses differ as to this, some putting it at two to three inches — others four to five, and one witness guessed that it was eighteen inches deep, but evidently she was mistaken. It was probably from four to six inches deep. But we think it is clearly shown by the evidence that the long stone or cement platform in front of the station and which came nearly to the south bound track, had been cleared off by the railroad men early in the morning, and that in addition to this, Several tracks had been cleared away from the platform over the first track to the second, affording a safe crossing from the platform to the north bound track, and the snow cleared away from the passageway between. the two tracks, so that passengers could easily and safely reach the north bound train. The other parts of the south bound track were covered with the snow which had fallen, except the rails which were plainly visible. This must have been so from the fact that trains had been passing there during the morning after the snow ceased to fall, and the evidence of witnesses is express as to this, though the plaintiff and another witness who followed her, *314testified that they could not see the rails. It seems clear, if plaintiff’s own evidence is to be credited, that she did not cross on the crossings made for passengers, but waded through the snow. This she ought not to have done, but even then, if she had looked for the rail which she ought to have done, for she knew it was there, she ought to have seen it. At all events, it seems clear that she slipped on one of the rails, and thus received her injury. But if it be true, as we think it was, that the defendant company had cleared the platform and made one or more safe and convenient crossings over this south bound track, we think that negligence on the part of this company was not shown. Unless there were special circumstances shown, we can see no necessity for clearing the whole of the tracks in front of the station of the snow which had fallen thereon, and in this case there was no evidence tending to show that ordinary prudence required it to be done.

*Ramsey, Maxwell & Ramsey,*for plaintiff in error.

*Chas. W. -Baker,*for defendant in error.

We see nothing in the charge of the court which was excepted to, that seems to us erroneous and prejudicial to the defendant.

We are of the opinion that the charge No. 7, asked to be given was correct. It was in this form: “ I charge you that the defendant in this

action was only bound to exercise ordinary care in view of any dangers to be apprehended, and that the failure of the defendant to remove snow from its tracks is not negligence *per se.”*This was refused and exception taken. The general charge on this subject, was this: “If you find

from the testimony that the defendant did use the care in clearing the approaches to this train, that a prudent person would have exercised under the circumstances, then your verdict must be for the defendant.” This was correct, but it left out of the view the last paragraph of the special charge refused which was correct.

For these reasons the judgment will be reversed and a new trial awarded.