#### Farmer, Admx., Appellee, *v.*The Pittsburgh, Cincinnati, Chicago *&*St. Louis Ry. Co. et al., Appellants.

(No. 651

Decided December 11, 1947.)

*Mr. L. E. Kerlin,*for appellee.

*Mr. Baircl Broomhall*and *Messrs. Goubeaux & Goubeaux,*for appellants.

Hornbeck, J.

This appeal is on questions of law from a judgment of the Common Pleas Court for the plaintiff in the sum of $2,975 and costs.

The cause was tried to judge and jury. At the conclusion of the plaintiff’s case, during the presentation of which the defendants offered the testimony of witnesses out of order by agreement, later moved for a directed verdict and renewed the motion at the conclusion of the whole case. Motion for judgment not*322withstanding the verdict and motion for new trial were filed, heard and overruled, and judgment was entered on the verdict.

Three errors are assigned here, two of which are, first, the refusal of the court to direct a verdict for the defendants on motion and, second, the refusal of the court to enter judgment notwithstanding the verdict, on motion, and in overruling the motion for new trial.

Plaintiff’s decedent, William H. Parmer, was, on the morning of December 18, 1945, operating a milk truck in a westwardly direction on the West Manchester-New Paris highway. When he reached the intersection of the highway with a railway crossing, owned by the defendant, The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, his truck was struck by a locomotive operated by defendant, the Pennsylvania Railroad Company, which locomotive was moving in a southwestwardly direction. It developed that The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company maintains and owns the right of way at the crossing, and that the Pennsylvania Railroad Company operates the trains along and over the crossing. We hereinafter refer to these defendants, without differentiation, as “defendants.” The truck with the body of Parmer in it was impaled on the locomotive, burst into flames and was carried a distance of from one-half to three-quarters of a mile before the locomotive and some 15 to 17 cars, constituting the train, were brought to a stop. The road, as it approaches the crossing from the east, and the railroad to the northeast make a rather sharp angle, and at a distance of about 1,000 feet the tracks of the railroad curve to the north.

It is alleged that the train was being operated negligently at an excessive rate of speed; that warning, either by bell or whistle, was not seasonably given as *323the train approached the crossing; that because of obstruction to the northeast, consisting of a growth of brush and trees, and because of the curve in the railroad track, the view of one approaching the crossing from the east was impaired; that there were inadequate signs and precautions for the safety of the travelling public, and particularly plaintiff’s decedent, at the crossing; that the decedent, as he approached the crossing, stopped his truck before entering the right of way, looked and listened for any train that might be approaching; that he could not see or hear the approach of the train; and that, after taking due precautions, plaintiff’s decedent started his motor truck in an effort to pass over the crossing,. but was unable to do so and the truck was struck and he was killed. Finally, it is averred that after the employees on the ■ locomotive saw Farmer on the track at the crossing and in peril and after defendant had time within which to stop its locomotive, it failed and neglected to make any effort to prevent injury to him.

Upon the issues drawn the cause went to trial. The plaintiff, among other witnesses, offered Floyd Spitler, deputy sheriff of Preble county, George W. Flory, the coroner of Preble county, Martin M. Miller, through whose farm defendant’s railroad runs, and H. D. Armstrong, the fireman on the locomotive which struck the truck of Farmer. At the conclusion of plaintiff’s case and at the end of the whole case, defendants moved for directed verdict upon four grounds, namely, (1) failure to prove any negligent act on the part of the defendants as the proximate cause of the death of plaintiff’s decedent, (2 and 3) the evidence as a matter of law disclosed that plaintiff’s decedent was chargeable with contributory negligence, and (4) for other reasons apparent on the record.

*324To appreciate the questions presented, it will be necessary to set forth, as briefly as possible, the testimony of some of the witnesses, particularly those for the plaintiff. Spitler testified to the report of the sheriff as to the collision and Flory testified to the report which he made as coroner. They were permitted over the objection of defendants to testify to statements made to them by the fireman as to certain details of the accident. Miller was also interrogated respecting statements made by the fireman which he heard on the same subject matter. If this testimony was in conflict in any material fact with the testimony of Armstrong, we would be faced with the necessity of determining whether these statements were admissible as a part of the *res gestae,*and there would indeed be serious doubt if any of them could properly be so received.

Manifestly, the deputy sheriff and the coroner were notified after the collision and did not come on to the scene of the accident until they had travelled some distance, all of which took considerable time. Could it be said that the statements of the fireman then made to them'were anything more than a recounting of past events ?

Miller was the first person on the scene after the collision, but he lived 400 feet from the crossing and the train had moved a distance of from one-half to three-quarters of a mile before it came to a stop, all of which distance he had to traverse before coming to the locomotive, and, after the engineer had left to call the coroner, Miller was in the cab with the fireman and it was then that the statements to which he testified were made. No objection was interposed to this testimony of Miller. If the statements of the fireman to Miller were in conflict with anything to which he *325testified, even so, such statements would not be substantive proof of the subject matter of the statements. Their only effect would be to weaken or detract from conflicting statements thereafter made on the stand by the fireman.

An examination of the following cases is of value in determining whether the testimony of those witnesses was competent as a part of the *res gestae. Liberty Highway Co.*v. *Callahan,*24 Ohio App., 374; *Wade*v. *State,*2 C. C. (N. S.), 189, 15 C. D., 279; and the late case in this appellate district, *Lyle*v. *Olentangy Cory.,*80 Ohio App., 351, 70 N. E. (2d), 397. We do not, however, find it necessary to hold that the testimony of those witnesses on the subject matter under consideration was incompetent.

The plaintiff was put to the necessity of offering, or at least did offer, Armstrong as her witness after the court had refused to permit him to testify as upon cross-examination. From Armstrong’s testimony, it appears that he was on the lookout as he turned the curve, a distance of about 1,100 feet from the crossing; that when the locomotive was some 600 feet therefrom he saw Farmer drive slowly up to the crossing; that when the locomotive was about 200 feet from the crossing Farmer drove up to within about six feet of the track and stopped his truck and thereafter, when the locomotive was within 100 to 150 feet from the truck, started up and drove onto the track; that before Farmer was seen the first time, the engineer, who did not and could not see the truck because he was on the opposite side of the locomotive, was blowing the whistle, which he had begun to do at a distance of a quarter of a mile from the crossing, and continued to blow it until after the truck was struck; that when the fireman discovered that the decedent would, in *326probability, be struck he called to the engineer to whistle and he then gave three sharp blasts; and that the bell on the locomotive had been ringing continuously from the time the train left Dayton until after the collision.

Further, the witness said that in the distance between Farmer and the locomotive when he drove onto the track, namely, 100 to 150 feet, it was impossible to stop or materially lessen the speed of the locomotive. Thus, it is manifest that, from the testimony of Armstrong, there was no issue of fact whatever upon which the jury could pass. 'If, however, from testimony of other witnesses for a plaintiff, which is favorable to the plaintiff, a conflict arises, then the jury should be given the opportunity to resolve the conflict. *Pope, Admx.,*v. *Mudge,*108 Ohio St., 192, 140 N. E., 501. Upon the closest study of plaintiff’s witnesses, we find no conflict whatever with the testimony of Armstrong upon any material issue of last clear chance.

Spitler, testifying from his report, said:

“Mr. Armstrong (the fireman) said that he saw the truck stop and then it started to cross the track. He told the engineer to blow the whistle.”

Flory answered as follows:

‘ ‘ A. The fireman told me that the truck stopped and then started again. That is according to my notes.

“ Q. Did he make any statement as to how far he was away when he saw that truck start up to make that crossing after it had been brought to a stop? A. No,, don’t remember that he did.”

On cross-examination, Flory reiterated his statements made on direct.

Miller testified:

“Q. I will ask you whether or not you talked to the fireman at that time? A. Yes, I was up in the cab *327after the engineer went to call the coroner at the neighbors, I was up in the cab with the fireman and he told me that he saw the man drive up and stop and then he said that they was coming around the bend when they saw him when he drove up and stopped, why then it just started on—

“Mr. Broomhall: You said that he started what?

A. Crept right up on the track with the truck.

“Q. He said that at the time that he seen him the 'engine was back about the curve there some place, ■didn’t he? A. Yes, he said it was coming just around the curve when they saw him stop.

# # # # *

“Q. I want to ask you, Mr. Miller, at the time you talked to the fireman of that train did he say what, if ■anything, either he or the engineer did after they saw this man start the truck up and he told the engineer that that they — that he thought they was going to hit him? Did he say anything? A. Yes, he said .just as soon as they come around the curve there and saw him stop and start on, why he looked over to the ■engineer and he said, we are going to hit him.”

Paul Royer was, by consent of counsel, called as a witness for the defendants- before the plaintiff had •concluded her case. He testified, on direct examination, as follows:

“Q. Well, I will ask you, Mr. Royer, if you talked with the engineer or fireman yourself down there immediately after this crash? A. No, I don’t know that I just talked to them myself. I was around there when they were talking.

“Q. Well, I will ask you if you heard that fireman ■say he saw Mr. Farmer bring his truck to a stop and then started on again when they was several hundred feet away from the crossing? A. I heard him say that. ’ ’

*328No objection was offered to that testimony. Royer testified further:

“Q. Did he say anything — did you hear him make any statement as to what either he or the engineer did after they saw that Mr. Farmer was in danger and liable to be hit? A. I know they started stopping as soon as they hit; you could hear them throw off their steam.

“Q. But you didn’t hear them throw on the steam until after they hit, did you? A. Well, of course, you would that quick; you wouldn’t think nothing about it. I wouldn’t know.

“Q. Did the fireman say anything as to whether the engineer attempted to stop the train before they got to that crossing after he told him that that fellow was going to get hit? A. I didn’t hear anything about that, I don’t think. I didn’t get that question clear.

“Question read again.

“A. Heard him say that he told him that he stopped; that he had got stopped when he asked him if he got stopped, but then he pulled up on the track after that, I reckon.

* # # * *

“A. I don’t know as the fireman said that they was going to hit him that I even heard.

* # * • •

“Q. You did hear him (the fireman) say that he saw him stop and start up again? A. I didn’t hear him say that he started back up. I heard him say- he said he seen him stop.”

That answer cleared up the ambiguity in the answer hereinbefore quoted. The testimony of Royer, of course, could not be considered on the motion for directed verdict at the conclusion of plaintiff’s case because, offered before the plaintiff had rested, it was a part only of defendant’s case and should be so considered.

*329Upon a full consideration of all the testimony relating to the averment of the last clear chance doctrine in the petition, there is no support for the claim of plaintiff because there was nothing in the statements of the fireman as to the occurrences immediately prior to and attending the collision upon which reasonable minds could differ. *Hamden Lodge*v. *Ohio Fuel Gas Co.,*127 Ohio St., 469, 189 N. E., 246.

We give some consideration to the other principal issues in the case, namely, the negligence of the defendants and the contributory negligence of plaintiff’s decedent.

It is said that the crossing where the collision occurred was dangerous, and that there were inadequate warnings there. But this could not have particularly .affected Farmer who had regularly, for four or five weeks prior to the collision, traveled over this crossing and was thoroughly familiar not only with the fact that there were railroad tracks there, but with the general physical situation attending. Nor would ’the failure of the defendant to place additional warnings, barriers or protection at the crossing have relieved Farmer from his obligation to exercise due •care.

There was some testimony that there were trees in the line of Farmer’s vision as he approached the crossing, and that the railroad track made a curve to the north at a distance of approximately 1,000 feet, but there is not a scintilla of evidence from which any inference can be drawn that Farmer’s view was materially impaired, if he had stopped six feet from the crossing, and that was the place where, from the competent testimony it must be said, he stopped. At that point he could have seen the locomotive for a distance of at least 1,000 feet.

*330There is likewise some testimony, negative in character, to the effect that no whistle was blown until a very short time before the collision. But the failure to sound warnings could not absolve plaintiff’s decedent from the obligation to use his senses, particularly of sight, at a time when such looking would have been seasonable. That he was contributorily negligent must be found as a matter of law, under the .case of *Columbus, Delaware & Marion Electric Co.*v. *O'Day, Admx.,*123 Ohio St., 638, 176 N. E., 569. In that case, an interrogatory was submitted to the jury the answer to which established the fact that plaintiff’s decedent, the driver of an automobile in which he was riding when struck, had he looked, would have seen an interurban car in time to have stopped his automobile in a place of safety, and that he did not look in the direction of the oncoming car when he was far enough from the railroad track to stop his automobile before reaching the crossing.

• Like answers must have been made to such interrogatories if presented in this case.

There is no escape from the conclusion that without respect to any negligence which may have been established against the defendants, which is very meager indeed on this record, it conclusively, and as a matter of law, appears that plaintiff’s decedent was chargeable with contributory negligence which would have precluded any recovery on the part of the plaintiff upon all averments of the petition save only that of last clear chance.

We have discussed the factual development on last clear chance. *West, Recr.,*v. *Gillette, Admr.,*95 Ohio St., 305, 116 N. E., 521; *Ross*v. *Hocking Valley Ry. Co.,*40 Ohio App., 447, 178 N. E., 852, and *Cleveland Ry. Co.*v. *Masterson,*126 Ohio St., 42, 183 N. E., 873, 92 A. L. R., 15, all announce the law of last clear chance *331in Ohio. As we have said, from the evidence before the jury upon this question, it must be resolved against the plaintiff because it does not appear, nor can it be inferred, that anything the engineer could have done after he discovered the peril of the plaintiff’s decedent could have prevented the collision.

It follows then that the motions of the defendants, particularly for directed verdict at the conclusion of all of the evidence and for judgment *non obstante veredicto,*should have been sustained, as well as the motion for a new trial.

The third assignment is directed to the general charge. We find the instructions of the court, as embodied in the charge, complete and correct and if the facts adduced had warranted their submission to the jury, its members would have had proper instructions as to the law controlling their deliberations.

The judgment is reversed, and judgment is entered in this court for the defendants.

*Judgment reversed.*

Wiseman, P. J., and Miller, J., concur.