#### Hayman, Admx., Appellant, *v.*The Pennsylvania Rd. Co., Appellee.

(No. 3804

Decided July 12, 1945.)

*Messrs. Benoy, Saxby $ Sebastian,*for appellant.

*Messrs. Burr, Porter, Stanley & Treffinger*and *Mr. Charles S. Gillispie,*for appellee.

Geiger, J.

This matter is before this court on appeal on questions of law from a judgment of the court below sustaining defendant’s motion to strike certain portions of the petition and, -plaintiff not desiring to further amend her petition upon the order of the court, in which the motions to strike were treated as a demurrer, dismissing the petition.

The petition presents an unusual state of facts, and, because of the matters considered by the court, it becomes advisable to recite the allegations of the petition somewhat more at length than might otherwise be justified.

The plaintiff, Roberta C. Hayman, is the administratrix of the estate of Richard Ellis Hayman, deceased. One of the lines of the defendant extends in an easterly and westerly direction through Franklin county and through the village of Black Lick. The tracks of the company extending through such village consist of three parallel contiguous tracks which pass over a public highway known as the ReynoldsburgNew Albany road. The defendant maintains a flasher signal light at such crossing, which flasher is set in *136operation when locomotives or trains stand upon or approach the grade crossing.

On the date in question, plaintiff’s decedent was driving northwardly on the Reynoldsburg-New Albany road in his automobile and approached' the tracks at the grade crossing, stopping before attempting to cross over the railroad tracks, at which time the flasher signal was in operation. He looked toward the east. It was stated that on many occasions prior to the date, the flasher signal was in operation on account of locomotives and cars standing near or approaching slowly the crossing. At the time the decedent so approached the railroad tracks and brought his car to a stop, the defendant was backing a locomotive, without cars attached, in a westerly direction upon the northernmost track and gave no signal of approach by either bell or whistle. The tender of the locomotive was approaching the highway at a time when the plaintiff’s decedent, after looking to the east, started his automobile forward from a standing position and attempted to cross over the crossing and had so crossed the northernmost track of the crossing that the front and a large part of his automobile was across the track, when the locomotive came into collision with his automobile. The locomotive was known and used as a “pusher” or “helper” locomotive. The crew in charge of the locomotive was composed of an engineer, fireman and signalman. The tender was provided with a cupola having a seat and glass windows and, at the time of the accident, opened in a westerly direction, and was constructed to provide a place for carrying the signalman whoso view of the tracks was unobstructed while the locomotive was backing. The rules of the defendant provided that these three employees must keep a lookout for obstructions on the track, receive and transmit to the engineer necessary signals and do all things necessary for the safe movement of the locomotive. At *137the time of the collision, the cupola was occupied by the signalman, but he was not paying attention to his duties and was not looking forward, so that, when the “defendant’s tender collided with the decedent’s automobile, said signalman failed to see said automobile on the crossing and failed to see, hear or feel the impact of said collision, and failed to give a signal to the engineman to immediately stop said locomotive.”

At the same time, neither the engineman nor the fireman was looking forward in the direction in which the locomotive was traveling, and neither of them saw or discovered the decedent’s automobile upon the tracks until after the automobile had collided with a switch standard.

The petition then states the unusual incident of the accident and asserts that the tender of the locomotive struck the decedent’s automobile at the rear thereof, caught it up on the north side and pushed it to the west a distance of approximately 1;000 feet before stopping. It is asserted that the front end of the automobile protruded beyond the tender of the locomotive, north of the track, and continued to ride on the tender for approximately 1,000 feet and, approximately 400 feet - west of the highway crossing, the west portion of the automobile so protruding on the north of the track struck a switch standard located north of and immediately contiguous to the tracks, causing the standard to be broken, oft. The decedent was thrown from the automobile to the ground on the defendant’s right of way at a point approximately 580 feet from the highway. It is alleged that the backing locomotive, at the time of the collision, was proceeding, at a speed of 20 miles per hour, and that, had either the engineman, fireman or signalman been looking forward and the signal been given by the signalman or fireman to the, engineman, the locomotive could have been instantly stopped before the automobile struck the standard. It is asserted *138that in and by the collision of the automobile with the switch standard and solely by reason thereof, plaintiff’s decedent received the injuries from which he died. It is further alleged in substance that during all of such distance, while the plaintiff’s decedent was in a position of peril from which he could not extricate himself, the engineman in charge of the locomotive failed and neglected to stop the same, and “during all of said distance * * * each member of the crew in violation of their duties, were not looking forward in a westerly direction, and each failed to observe persons attempting to give warning of the peril in which . the plaintiff’s decedent was placed, while decedent’s automobile was being carried on the tender as aforesaid. Notwithstanding the noise incident to the collision, and the force of the impact of the collision of the tender with his automobile at said grade crossing, neither of the members of said crew in charge of the locomotive discovered the peril of the plaintiff’s decedent in time to stop said locomotive and avoid the accident. ’ ’

It is stated that decedent’s death was solely and approximately caused by the negligence and carelessness of the defendant’s servants in charge of the lo-comotive in not discovering decedent’s perilous position.

The defendant filed a motion to.strike out certain matters in the petition, which it designates in three branches. The motion of the defendant in all branches was sustained. Branches one and two, are not of importance enough to comment upon. The whole question centers around the action of the court in striking what is designated as the 13th paragraph of plaintiff’s petition, which we have quoted above. The final entry in the case is to the effect that the cause came on to be heard on the defendant’s motion, and the court, on *139consideration thereof, found that the motion as to each of the three branches was well taken and sustained the same. “Plaintiff, not desiring to amend or further plead, the court treats said motion as to the petition as a demurrer to the petition, and treating said motion as such demurrer, finds that the same is well taken, and does sustain the same, and does order the plaintiff’s petition to be dismissed at the cost of the plaintiff. Plaintiff excepts.”

From this final entry, the plaintiff appeals.

Under the peculiar facts plead, there might be a close question as to whether the last clear chance doctrine might be available to the plaintiff or whether the negligence of both plaintiff’s decedent and defendant concurred and continued and, therefore, the plaintiff would have no right of recovery. However, this matter, so far as the plaintiff is concerned, is definitely settled by her statement in her brief, to wit, “plaintiff bases her case on the doctrine of the ‘last clear chance.’ It presents a clear and unadulterated case of ‘last clear chance’ or as called by many authorities, the ‘humanitarian doctrine.’ ”

Defendant contends that in this state the last clear chance doctrine cannot be availed of without the specific allegation that the défenclant’s servants actually saw the decedent in a position of peril and actually knew same. This brings the matter in controversy sharply to the attention of the court. If the plaintiff has clearly invoked the doctrine of the last clear chance, then it is for the court to determine whether, under the allegations of the «petition, there was the necessity of statement to the effect that the defendant’s servants actually saw or knew of the perilous condition of the plaintiff’s decedent after his car was first struck by the backing locomotive. Counsel for both sides have given their attention largely to the *140question of the allegations necessary in the determination of the issues necessary in the application of the doctrine of the last clear chance.

There is no doubt that there has been some confusion in the judgments of the several courts of Ohio, and they are not easy to reconcile. Also, it appears that in many, other jurisdictions, a rule has been established definitely contrary to that asserted by the defendant in this case as to the necessity of actual notice before the defendant can be held liable on account of its failure to exercise its duty under- the doctrine of avoiding the injury to a person after he by his own negligence is placed in a perilous position.

It is quite apparent that the plaintiff in this case has not only failed to assert that the defendant was actually advised of the perilous-position of the decedent, but the allegations of the petition are definitely in denial of any such claim. The plaintiff repeats in several different forms the allegations that the defendant, due to the negligence of its servants, was not advised of the perilous position of the plaintiff’s decedent and had no knowledge of the fact that the automobile was riding on the tender of the locomotive before the automobile struck the standard, causing decedent’s death. If the law of Ohio is to the effect that the plaintiff might recover after plaintiff’s decedent had, by his own negligence, placed himself in a position of peril from which he could not extricate himself, and the defendant, through its own negligence, failed to discover the perilous position of the plaintiff’s decedent so as to avoid the accident, then it would appear that the question as to the liability of the defendant should have been submitted to the jury under proper instructions. However, if the law of Ohio is to the ' effect that the defendant, under conditions narrated in the petition, must first have been actually advised of. *141the peril of plaintiff’s decedent and, after such knowledge, hy its own negligence had failed to exercise proper care to avoid the accident, then the petition does not state facts sufficient to constitute a cause of action and the court below was not in error in sustaining the. demurrer to the petition, or rather in sustaining the motion which it considered as a demurrer.

This case has been presented by both sides in a masterly manner. We shall not make a detailed examination of the position taken by either side, nor shall we give any detailed analysis of the decisions on this point in the state of Ohio.

The most pertinent case is that of *Cleveland Ry. Co.*v. *Masterson,*126 Ohio St., 42, 183 N. E., 873, 92 A. L. R., 15, the syllabus of which is, in part, as follows:

“1. Where a plaintiff, by his own fault, has caused himself to be placed in a perilous situation, he may recover under the rule of the Oast clear chance,’ notwithstanding his negligence, if the defendant did not, *after becoming aware of plaintiff’s perilous situation,*exercise ordinary care to avoid injuring him.

*“2.*If recovery is predicated upon a state of facts invoking that rule, an instruction by the court, to the effect that if the plaintiff was guilty of such negligence his negligence would not preclude recovery, if the defendant failed to use ordinary care *‘after he saw or in the exercise of ordinary care should have seen’*the plaintiff in a dangerous situation, is erroneous. The rule, in Ohio requires the defendant to use due care after *knowledge*of plaintiff’s peril. *(Erie Rd. Co.*v. *McCormick,*69 Ohio St., 45, approved and followed; the first proposition of the syllabus in *Railroad Co.*v. *Kassen,*49 Ohio St., 230, disapproved.)

“3. A petition, setting forth a state of facts as a basis for' the application of the doctrine of the last chance but which, in that connection, merely al*142leges that defendant saw or *could have seen the plaintiff in a perilous situation,*is insufficient to invoke the rule ** * *.*

“4. A .plaintiff may, in his petition, plead a case of ordinary negligence and may also plead a state of facts invoking the last chance rule; and he may recover under whichever aspect the proof in the case assumes.” (Emphasis ours.)

Under the principle of the fourth paragraph of that syllabus it might have been possible for a plaintiff to so frame his pleading as to be entitled to *a*recovery under an allegation of simple negligence or under the doctrine of the last clear chance, whichever aspect the proof in the case might thereafter have assumed. However, as hereinbefore stated, the plaintiff in this case distinctly and exclusively relies upon the doctrine of the last clear chance and does not assert any right to claim under allegations and proof of ordinary negligence.

The *Masters on case*is á very interesting one and seems to state the final position taken by the Supreme Court of Ohio. Counsel for plaintiff in the instant case in their brief endeavor to minimize the effect of that case by the assertion that the facts did not justify the decision of the court.

Chief Justice Marshall, in an opinion concurring in the judgment but dissenting from the rules announced by the several paragraphs of the syllabus, reviewed in an interesting way the various cases in the state of Ohio. He stated that he concurs in the judgment of reversal upon the sole ground that the issue of the last clear chance doctrine was not made by the pleadings, and it was therefore reversible error *to*receive evidence upon that issue and it was also error to instruct the jury upon that issue. Although Chief Justice Marshall’s opinion is a concurring opinion, it is, as he stated, on the sole ground that the issue of last *143clear chance doctrine was not made by the pleadings.

The first paragraph of the syllabus in *Railroad Co. v. Kassen,*49 Ohio St., 230, 31 N. E., 282, 16 L. R. A., 674, disapproved in the *Master son ease, supra,*is as follows : •

“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.”

The *Kassen case*was a leading case for many years in Ohio and seems to have been largely concurred in on the ground that after Kassen had fallen from the first train the employees of the railroad were informed of his perilous position but failed to notify the second train which killed him. Some courts have taken the position that notice to the railroad employees riding on the first train from which Kassen fell was as a matter of fact notice to and knowledge to be imputed to the company which should have avoided the accident by notifying the operators of the second train.

The third paragraph of the syllabus of *Erie Rd. Co.*v. *McCormick, Admx.,*69 Ohio St., 45, 68 N. E., 571, is:

“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, if is necessary to show actual knowledge imputable to the company. *Railroad Co.*v. *Kassen,*49 Ohio St., 230, distinguished.”

On page 55 of the *McCormick case,*Shauck, J., stated:

“By introducing into the instruction given the *144phrase, ‘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. * * * upon the only ground alleged in her petition upon which she might recover there is an entire absence of evidence, to wit: the *actual knowledge of the engineer of McCormick’s peril.”*(Emphasis ours.)

Tracing the course .of decisions in Ohio, we.have examined the earlier cases. In *Cincinnati & Zanesville Rd. Co.*v. *Smith,*22 Ohio St., 227, 10 Am. Rep., 729, concerning trespassing animals killed by a train, it is stated that, “if the servants of the company, having the train in charge, *by the exercise of ordinary care,*and with due regard to their duties for the safety of the persons and property in their charge, *could*have seen such animals on the track in time to have saved them, it was their duty to have done so, and for their negligence in this respect, where the owner is not guilty of contributory negligence, the company will be liable. ’ ’ (Emphasis ours.)

Of course there is a marked distinction between that case and the case at bar, and that case probably cannot be considered as an authority for the proposition that if the defendant in the case at bar *could*have discovered the perilous position of the decedent a recovery might be had.

*Lake Erie & Western Rd. Co.*v. *Weisel,*55 Ohio St., 155, 44 N. E. 923, held that where the neglect of the owner of trespassing animals permits them .to go upon the right of way of the railroad company, liability on the part of the company arises.only when it is shown that injury to the animals resulted from the intentional act or gross carelessness of those operating the train.

In *Drown*v. *Northern Ohio Traction Co.,*76 Ohio *145St., 234, 81 N. E., 326, 118 Am. St. Rep., 844, 10 L. R. A. (N. S.), 421, it was held:

“The doctrine of ‘last chance,’ as formulated in *Railroad Co.*v. *Kassen, * * **does not apply 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.

“Since the plaintiff can recover only upon the allegations of his petition, he cannot recover upon negligence which warrants the application of the rule of ‘last chance’ without alleging it in his petition.”

Although the petition of the plaintiff in the case at bar does not specifically allege the doctrine of the last clear chance, yet by inference such doctrine may be regarded as alleged, especially since plaintiff asserts that she relies upon the last clear chance.

*Steubenville & Wheeling Traction Co.*v. *Brandon, Admr.,*87 Ohio St., 187, 100 N. E., 325, holds that where a motorman operating a car upon a public street 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 in front of the car, it is the motorman’s duty to use ordinary vigilance to stop or check the car in order to avoid a collision. Such a rule would more nearly apply to the duty of the operators of the train to avoid the original collision and has no application to the last clear chance rule.

*West, Recr.,*v. *Gillette, Admr.,*95 Ohio St., 305, 116 N. E., 521, related to a crossing accident and it was there held that the fact that the driver of a smaller vehicle may have been originally negligent in the mat*146ter of going on the crossing will not, as a matter of law, defeat his right of recovery for the injury if the motorman of a streetcar has not used ordinary vigilance after discovering him. This of course relates to the first collision and has no direct application to the doctrine of last clear chance.

It was held in *Pennsylvania Co.*v. *Hart,*101 Ohio St., 196, 128 N. E., 142:

“It is error for the trial court * * * to charge the doctrine of ‘last clear chance’ where there is no evidence tending to prove a state of facts bringing the case within the rule.”

In that case, it was stated by Robinson, J., on page 200:

“For the defendant in error to have brought himself within the rule [last clear chance] and to have entitled himself to a charge of the court upon the subject, the evidence must have tended to show that, while his negligence may have contributed toward getting him in the position of danger, all negligence on his part had ceased for a sufficient time prior to the accident to have enabled the plaintiff in error, after it *knew*of his situation of peril, to have avoided the accident.” (Emphasis ours.)

The syllabus of *Brock*v. *Marlatt, Admx.,*128 Ohio St., 435, 191 N. E., 703, is:

“The last clear chance rule has no application to any situation except where the injured party through his own negligence has placed himself in a position of peril. The doctrine presupposes the antecedent negligence of the plaintiff, and an instruction on such issue is not proper where the negligence of the defendant and contributory negligence of the plaintiff are concurrent. *(Cleveland Ry. Co.*v. *Masterson,*126 Ohio St., 42, and *Pennsylvania Co.*v. *Hart,*101 Ohio St., 196, approved and followed.)”

*147In *Schaaf*v. *Coen, Recr.,*131 Ohio St., 279, 2 N. E., (2d), 605, the second paragraph of the syllabus is:

‘ ‘ Contributory negligence of plaintiff will not bar recovery in a case where the doctrine of ‘last clear chance’ is applicable, if the proximate cause of plaintiff’s injury was the failure of defendant to seasonably' exercise his ‘last, clear chance’ to avoid injury *after becoming aware of plaintiff’s perilous position.”*(Emphasis ours.)

In the *Schaaf case,*Day, J., stated:

“The controlling consideration, however, is not whether plaintiff was guilty of contributory negligence, but rather whether defendant *became aware of plaintiff’s position of peril*in time to have avoided injury by the exercise of ordinary care. If defendant could have avoided plaintiff’s injury, the doctrine of ‘last clear chance’ * * ***must be applied in the case. * * *.

“The rule generally recognized is that in a case where the doctrine of ‘last clear chance’ is applicable, plaintiff’s contributory negligence will not bar recovery if the proximate cause of his injury was defendant’s failure to seasonably exercise his ‘last clear chance’ to avoid injury *after becoming atoaré of plaintiff’s perilous position.*

“ ‘Where.a plaintiff * * has caused himself to be placed in a perilous situation, he may recover under the rule of the “last clear chance,” notwithstanding his negligence, if the defendant did not, *after becoming atuare of plaintiff’s perilous situation,*exercise ordinary care to avoid injuring him.’ ” (Emphasis ours.)

In *Ross*v. *Hocking Valley Ry. Co.,*40 Ohio App., 447, 178 N. E., 852, this court considered whether a charge was one touching the primary duty of the defendant toward the plaintiff or was a last clear chance instruction, then reviewed the evidence and concluded that the undisputed state of the record disclosed that the *148engineer did not see the plaintiff at any time, nor did the fireman until within 20 feet of the plaintiff. A brakeman testified that he had seen the plaintiff after ho was 200 to 250 feet on the bridge, but this brakeman did not continue a lookout ahead, and the court stated that the pertinence of the plaintiff’s special charge No. 5 became evident wherein it stated: “If you find that an employee or employees of the defendant upon the engine could, in the exercise of ordinary care, have discovered plaintiff in a situation of danger in time to have avoided injuring him,” etc.

The court then said:

“This case accentuates the difficulty which is presented in last clear chance charges in determining whether or not the obligation enjoined upon the defendant begins after the peril of the plaintiff is *discovered*or begins when, *by the exercise of. ordinary care, it could have been_ discovered.*The decisions of the Supreme Court are not as clear as desired, but insofar as we are able to interpret them, they sustain the action of the trial judge. * * *

“The position of Ohio on this question is well stated in 45 Corpus Juris, 990: ‘In some jurisdictions recovery is permitted only where defendant fails to exercise ordinary care to avoid the injury *after becoming actually aware of the peril of the injured*person.’ ” (Emphasis ours.)

The court stated that Ohio is listed in the states supporting the text. See 45 Corpus Juris, 990 *et seq.,*Section 542, and citations; 38 American Jurisprudence, 906, Section 220.

The court below in the instant case took the position that under the rule in Ohio there should be an allegation that the defendant actually knew of the peril of the plaintiff and after such knowledge failed- to use proper care in avoiding an injury. In view of the *149cases tlmt we liave cited and especially in view of the decision of our own court, which has not been reversed, we feel obliged to sustain the position of the court below and affirm its judgment dismissing the plaintiff’s petition.

*Judgment affirmed.*

Hornbeck, P. J., and Miller, J., concur.