#### The Pennsylvania Rd. Co. *v.*Vitti, Admr.

*Negligence*— Question *for jury*— Whether *person injured trespasser or licensee*— Liability to, *policeman lawfully on premises*— Railroad *violating speed laws liable*— Judgment *on special verdict limited, how*— Absence *of finding of fact essential to plaintiff’s case*— Defendant *not entitled to judgment, when.*

1. Where the evidence is such as to warrant, it is the duty of the trial court to submit to the jury with proper instructions the question whether the person injured on the premises of another by the claimed negligence of the owner thereof was at the time of such injury on the premises either at the express or implied invitation of the defendant, or whether he was a trespasser or a mere licensee.

2. The act of a railroad company, in violation of law or ordinance, causing injury to a police officer lawfully upon the premises in the discharge of his duty to apprehend persons there disturbing the peace by molesting passengers or injuring the property of the defendant, is actionable negligence, whether such officer be denominated a licensee or invitee.

*6713. The judgment rendered on a special verdict by a jury under Section 11462, General Code, must be the legal conclusion from the facts found in such special verdict, and the court cannot look beyond such findings of fact.

4. The rule that the defendant is entitled to judgment where there is an absence of finding of fact essential to a recovery by the plaintiff has no application where such absent finding would necessarily have been upon an issue as to which the court did not instruct the jury and erroneously refused to submit to the jury.

(No. 18273

Decided December 23, 1924.)

Error to the Court of Appeals of Cuyahoga county.

This action was instituted in the court of common pleas of Cuyahoga county, wherein plaintiff, as administrator of the estate of William Lupe, sought to recover damages for the death of the decedent, which, it was claimed, resulted from the negligence of the defendant, the Pennsylvania Railroad Company. Issue was made by the amended petition of the plaintiff and the answer of the defendant.

It was averred in substance that at the time in question the defendant company maintained and operated a passenger station in the city of Massillon, Ohio, located on the north side of two parallel tracks, which tracks extended in an easterly and westerly direction; that the track nearest the passenger station, known as the north track, is the track upon which west-bound trains travel, and the east-bound trains travel over the south track; that a short time before the arrival of train known as No. 8, an east-bound passenger train due to ar*672rive about 1 o’clock at night, the decedent and two other young men purchased tickets from the agent of the company for transportation to Canton, Ohio, and while waiting upon the platform for the arrival of their train became engaged in a controversy with three other young men, and at about the time of the arrival of their train were attacked by the other group of young men, as a result of which a police officer in the vicinity of the depot was called; that upon his arrival the young men who had caused the disturbance and made the assault were on the south side of train No. 8, which had then arrived, and was standing at the depot, but upon seeing the officer approach they ran underneath or through the coaches of the train to the north side; that the police officer, together with plaintiff’s decedent and one of his companions, who were assisting the officer in his endeavor to locate and arrest the three who had caused the disturbance, started in pursuit, and first climbed up into the baggage car of train No. 8, the south door of which was open; that the baggageman requested the police officer and plaintiff’s decedent to go over on the north side of the train, and opened the north door of the baggage car, and the police officer and plaintiff’s decedent then jumped out of the north door of the baggage car to continue their pursuit; that in continuing the search for the boys who had caused the disturbance, they proceeded eastwardly along the north track, and then turned back in a westerly direction, during all of which time, it is asserted, decedent was assisting the police officer at the request of such officer; and that when they reached a point opposite *673the baggage coach, suddenly and without any warning whatever, another train of the defendant company, known as No. 29, running at a reckless and dangerously high rate of speed, that is,, about 50 miles an hour, traveling in a westerly direction upon said north track, struck plaintiff’s decedent, and killed him instantly. It was further averred that at said time and place there was a number of electric lights burning, and that the tracks of the defendant are straight for a distance of 700 feet or more, so that the engineer and fireman could both have had a clear and unobstructed view along said north track for a distance of 700 feet or more east of the depot, and that the decedent could have been seen by the engineer and fireman when they were a sufficient distance away that a warning would have afforded him an opportunity to reach a place of safety.

The negligence charged by the plaintiff was (1) that train No. 29 was being operated at a careless, excessive, and dangerous rate of speed, to wit, 50 miles an hour, in violation of an ordinance of the city of Massillon which prescribes a maximum speed of 8 miles per hour; (2) that the engineer in the operation of the train failed and neglected to maintain a lookout along the track in front of the train; (3) that if the engineer was maintaining a proper lookout he saw plaintiff’s decedent, or could have seen him, at a distance far enough away to have sounded the whistle and thus given warning to plaintiff’s decedent of the approach of the train in time for him to have reached a place of safety.

The answer, in addition to making a general *674denial of the averments of the amended petition, pleaded contributory negligence of the decedent.

At the close of the trial, upon the request of counsel for defendant, the jury were instructed to and did return a special verdict, which is as follows:

(1) “The jury finds that Wm. Lupe was a licensee in being where he was at the time of the accident. (2) The jury finds established by the evidence that the defendant, the Pennsylvania Company, operated this train No. 29 at more than 8 miles per hour at the point in question. (3) The jury finds Wm. Lupe, on the track, could readily be seen by the engineer of No. 29, when said train was distant from him 800 feet. The engineer did not see him at all. (4) The jury established by the evidence that the engineer of train No. '29 did not blow a whistle as the train approached the depot. (5) The jury finds the proximate cause of the death of Wm. Lupe, plaintiff’s decedent, was the facts contained in paragraphs 2, 3, and 4 hereof. (6) The jury does not find Wm. Lupe was careless. (7) The jury finds that the plaintiff as administrator, and for the benefit of the next of kin, as alleged in the amended petition, has been damaged in the sum of $9,500.”

Upon this verdict the trial court rendered a judgment for the defendant, and upon the overruling of a motion for a new trial by that court error was prosecuted to the Court of Appeals, which court reversed the judgment of the court of common pleas and remanded the cause for further proceedings. Thereafter, upon motion, the record was ordered certified to this court for review and final determination.

*675*Messrs. Squire, Sanders & Dempsey,*for plaintiff in error.

*Messrs. Howell, Roberts & Dimean,*for defendant in error.

Matthias, J.

It is to be observed that the jury-in the special verdict found that at the time and place in question the defendant was operating its train at a speed of more than 8 miles an hour, and that the engineer thereof could have seen the plaintiff’s decedent when the train was 800 feet distant from him, but did not see him; that no whistle was sounded as the train approached the depot; that Lupe was not careless; and that the proximate cause of his death was the speed of the train, the failure to whistle, and failure of the engineer to see Lupe. The further finding is that in being where he was at the time of the accident Lupe was a licensee. The necessary conclusion from these findings therefore is that the defendant was negligent in the particulars charged, and that Lupe was not negligent, and that the proximate cause of his death was such negligent acts of the defendant, and yet immediately upon return of the verdict the trial court rendered^ judgment for the defendant. The question arises, therefore, whether the fact that the jury found that at the time of his injury Lupe’s relation and status was that of a licensee required or warranted a judgment for the defendant. And the further question is presented as to whether the trial court by correct, instructions submitted to the jury the issue as to the status of the decedent.

Undoubtedly, where the evidence is such as. to warrant, it is the duty of the trial court to submit *676to the jury the question as to whether the person injured on the premises of another by the claimed negligence of the owner thereof was at the time of such injury on the premises either at the express or implied invitation of the defendant, or whether he was a trespasser, or a mere licensee. 29 Cyc. 638.

The trial court, in evident recognition of the propriety, if not the duty, of submitting such question to the jury in this case, gave somewhat detailed instructions, wherein he defined trespasser, licensee, and invitee, but in the end practically found, and so advised the jury, that the decedent, as well as the police officer, whom he was assisting at the request and direction of the officer, were mere licensees. Under this instruction the jury could not find otherwise than that the decedent was a licensee. While the evidence in the record would probably justify the trial court in saying to the jury that the mere invitation by the baggagemaster on the defendant’s train to the police officer and the decedent to pass through the baggage car on their mission endeavoring to apprehend those who had been molesting defendant’s passengers, disturbing the peace, and possibly endangering defendant’s property, could not be construed as an invitation to go elsewhere upon the defendant’s premises, even if the baggagemaster were conceded to have any such authority, yet there was evidence tending to show that the officer, and consequently one deputized as his assistant, were upon the premises by implied invite lion.

Bearing upon the question of the status of the decedent, plaintiff’s counsel had made a special *677request for instruction to the jury in accordance with the rule stated in 33 Cyc., 756, as follows:

> “A licensee on the railroad’s premises is a person who being neither a passenger, servant, nor trespasser, nor standing in any contractual relation to the company, is expressly or impliedly permitted by the railroad company to come on its premises for his own convenience or gratification. But if his being on the company’s premises is for the company’s interest or benefit, as well as for his own, he is more than a mere licensee, and is upon the premises by the company’s invitation, express dr implied.”

The same principle is stated and quite fully discussed in 3 Elliott on Railroads (3 Ed.), p. 827, Section 1786.

The evidence in the record clearly established the charge of negligence in regard to the speed of defendant’s train, and.that it was far in excess of an ordinance of the municipality, which was introduced in evidence and was uneontradicted. ' Such legal restrictions. enacted for the preservation of life and safety of individuals would certainly accrue to the benefit of one occupying the status which some evidence in the record tended to show was the relation of the police , officer and the decedent to the defendant railroad company at the time of the-injury, and the mere finding that they were licensees would not of itself authorize a judgment for the defendant. Under such circumstances it would seem that there was a duty upon the part of the railroad company to avoid causing injury by active violation of law.' The violation of a statute or ordinance passed in the proper exercise of the *678police power, in the interest of public safety, is negligence *per. se. Schell*v. *DuBois, Adm’r.,*94 Ohio St., 93, 113 N. E., 664, L. R. A., 1917A, 710. Certainly the act of a railroad company in violation of law or ordinance, causing injury to a police officer lawfully upon the premises in the discharge of his duty to apprehend persons there disturbing the peace by molesting passengers, or injuring property of the defendant, is actionable negligence, whether such officer be denominated a licensee or invitee, although it be not averred that the act of the defendant was willful or wanton. *Parker*v. *Barnard,*135 Mass., 116, 46 Am. Rep., 450; *Racine*v. *Morris,*136 App. Div., 467, 121 N. Y. Supp., 146, affirmed 201 N. Y., 240, 94 N. E., 864.

While in our opinion it was error for the court to enter judgment for the defendant upon the special verdict, we are also of the opinion that a judgment for the plaintiff upon such special verdict would likewise have been invalid. A special verdict must be of such a nature that nothing remains for the court but to draw from the facts found the proper conclusions of law, and to enter judgment thereon. The general rule applicable is stated in 27 Euling Case Law, 876, as follows:

> “There can be no aider of a special verdict by implication or intendment. Such a verdict is supposed to be the complete result of the jury’s deliberation on the whole case, and the judgment thereon must be the logical, legal conclusion from the facts found by the jury, unaided by the evidence or any extrinsic matter. It cannot look beyond the findings of fact contained in the verdict to any other fact, though apparent in the record, or proven *679by the evidence. * * * A special verdict must directly, fairly, and fully respond to the material issues in the ease, and should be sufficiently certain to stand as a final decision of the special matters with which it deals. The conclusions of fact must be so presented that nothing remains to the court but to draw conclusions of law from them and enter judgment accordingly.”

Although in the special verdict the jury did find that the train in question was being operated at more than 8 miles an hour at the time and place in question, there was no finding of the existence of any ordinance which was thereby violated, nor was there any finding that Lupe was acting as a deputy police officer. Although such ordinance was offered in evidence, and there was testimony that Lupe was at the time acting as a deputy officer, for the reasons shown above the trial court could not look beyond the special verdict to the evidence disclosed in the record, and base a judgment partially upon a special verdict and partially upon facts extrinsic thereto.

It is claimed by counsel for plaintiff in error that when it is found and determined that the special verdict does not contain a finding of facts such as to warrant a judgment for the plaintiff, it necessarily follows that judgment should be rendered for the defendant.

For the reasons stated above, and for the further reason that where a case is tried upon special issues submitted to the jury the verdict cannot stand unless all the issues made by the pleadings are submitted and determined, such rule can have no application here. Counsel for plaintiff by form *680of special verdict tendered suggested the submission of such issues to the jury, but notwithstanding such suggestion the court did not submit to the jury either of the issues suggested, or give them any instruction whatever with reference thereto. *Leach*v. *Church, Admr.,*10 Ohio St., 148; 27 Ruling case Law, 885.

It follows that the judgment of the Court of Appeals reversing the judgment of the common pleas and remanding the ease to that court for further proceeding was right, and such judgment is therefore affirmed.

*Judgment affirmed.*

Marshall, C. J., Robinson, Jones, Day, Allen, and Conn, JJ., concur.