Summary
In Capelle the Supreme Court of Ohio held that the negligence of the driver was the sole proximate cause of the collision as a matter of law.
Summary of this case from Arrasmith v. Pennsylvania Railroad Co.Opinion
No. 27600
Decided January 10, 1940.
Negligence — Railroad train occupying track at highway grade crossing — Additional signs, signals or warnings not required — Person driving or driven into train cannot recover from railroad, when — Train obstructing highway longer than five minutes — Section 7472, General Code — Statute designed to facilitate traffic and not as safety measure — Train occupancy of crossing not cause of collision, when.
1. Where a railroad train is rightfully occupying its track at a common grade crossing in the open country, the presence of the train is usually adequate notice to an approaching traveler on the highway that the crossing is preempted, and no additional signs, signals or warnings, other than those specified by law, are ordinarily required of the railroad company.
2. In general, a person who drives, or is driven, into the side of a railroad train standing or moving over a grade crossing cannot, in the absence of special circumstances rendering the crossing peculiarly hazardous, recover from the railroad company for injuries received thereby.
3. Section 7472, General Code, as it relates to the obstruction of highways by railroad trains, is designed to facilitate the movement of traffic and to discourage unnecessary blockade; it is not a safety measure to prevent vehicles from being driven against the sides of trains.
4. Where a motor vehicle is run into a train which has occupied a crossing for a period of time in excess of the limit prescribed by statute or ordinance, such occupancy is generally to be regarded as a condition only, and not as a cause of the collision.
CERTIFIED by the Court of Appeals of Huron county.
Sometime after midnight on May 2, 1937, the appellant, Lawrence Capelle, was riding as a passenger or guest in a 1926 model T Ford automobile owned and operated by Gene R. Roberts. Both the young men were sitting in the same seat of the automobile, which was without a top. They had visited two places of entertainment together and were proceeding in a southerly direction over old state route No. 99 from the village of Havana toward the village of Centerton, in Huron county.
At a point near Centerton, in the open country, the highway is intersected by a single track of The Baltimore Ohio Railroad Company. Photographs attached to the bill of exceptions as exhibits show no unusual or hazardous conditions surrounding the crossing itself.
Employees of the railroad company were then engaged in a switching operation consisting of picking up a car on a nearby siding, with the detached locomotive, and adding the car to a train of freight cars of which they had charge and which was then occupying the crossing. The automobile driven by Roberts either skidded into one of the freight cars and then landed in a ditch at the side of the road, or was turned into the ditch in an effort to avoid striking the freight car. Thereby the appellant sustained physical injuries of a substantial nature.
All witnesses agreed it was dark; some testified there were traces of fog or mist about the crossing, others that the night was clear, with good visibility.
Witnesses who were riding in an automobile behind Roberts and Capelle stated that for some time prior to and just before the misadventure the Roberts car was weaving back and forth across the road in a zigzag fashion.
There were the usual signs denoting the presence of the crossing. The railroad company had erected a cross-arm sign as prescribed by statute, and both the appellant and the driver, who lived in the general neighborhood, admitted familiarity with the existence of the crossing.
Roberts testified that shortly before the mishap he was proceeding at a speed of twenty to twenty-five miles per hour; that the lights on the automobile were burning; and that the hard-surfaced road was slippery. Both Roberts and Capelle said, in substance, that they were looking ahead but did not realize their proximity to the crossing or see the train until it was too late to escape contact with it.
The principal allegations of negligence in the petition as amended were that the railroad cars were left standing unnecessarily across the highway for a period of more than five minutes, in violation of Section 7472 General Code, and that the company was negligent in failing to apprise travelers approaching on the highway of the presence of the cars by lights or other effective warnings.
There is testimony in the record suggesting that the train had occupied the crossing from twenty minutes to half an hour. There is also testimony that the time was only five or six minutes, and no longer than was necessary to complete the work being performed.
It was apparently determined by the trial judge that the only allegation of negligence which might properly be considered by the jury was the one claiming a violation of Section 7472, General Code, and he so advised the jury in the general charge. However, he also used language several times indicating that the other allegations of negligence were still before it, which made the charge contradictory and confusing.
A verdict of $5,000 was awarded the appellant and judgment entered thereon. An appeal on questions of law was perfected to the Court of Appeals, where the judgment of the trial court was reversed and final judgment rendered for the company by a concurrence of all three judges.
The court took the view that the petition did not state a cause of action; that the violation of Section 7472, General Code, if there was a violation, would create no liability against the railroad for the appellant's injuries, because it was not a contributing, proximate cause thereof, and that the trial court should have directed a verdict for the railroad.
Finding the judgment pronounced in conflict with the judgment of the Court of Appeals of the First Appellate District in the case of Short v. Pennsylvania Rd. Co., 46 Ohio App. 77, 187 N.E. 737, the judges certified the record to this court for review and final determination.
Messrs. Catri Catri and Messrs. Carpenter Freeman, for appellant.
Mr. G. Ray Craig and Mr. F.F. Frazier, for appellee.
It was held by this court in the case of Reed, Admr., v. Erie Rd. Co., 134 Ohio St. 31, 15 N.E.2d 637, that there was no liability on the part of the railroad for the death of an automobile passenger caused when the vehicle in which she was riding was driven against a moving freight train passing over a grade crossing in the open country at night.
We remarked in the opinion that, under the circumstances disclosed, "the appellee was not obliged to provide other means of warning than those prescribed by lawful authority. No legal duty rested on it to carry lights or reflectors on its cars, or to maintain lights, watchmen or gates at the crossing for the protection of travelers using the highway." We also had occasion to observe that the majority of holdings are to the effect that "where a railroad train is rightfully occupying its track at a highway intersection, the presence of the train is adequate notice to a traveler that the crossing is preempted. Consequently, no additional signs, signals or warnings are required of the railroad company, and negligence cannot be imputed to it by reason of their absence."
The following recent decisions, expressive of the modern viewpoint and representing the weight of authority, sustain the general proposition that a person who drives, or is driven into, the side of a train standing or moving over a grade crossing cannot, in the absence of special circumstances rendering the crossing peculiarly hazardous, recover from the railroad company for injuries received; and the existence of weather conditions tending to diminish visibility does not alter the rule. See Dolan v. Bremner, Recr., 220 Iowa 1143, 263 N.W. 798; Bledsoe v. Missouri, K. T. Rd. Co., 149 Kan. 741, 90 P.2d 9; Chesapeake Ohio Ry. Co. v. Switzer, 275 Ky. 834, 122 S.W.2d 967; Toledo Terminal Rd. Co. v. Hughes, 115 Ohio St. 562, 154 N.E. 916; Reines, Admx., v. Chicago, M., St. P. P. Rd. Co., 195 Wn. 146, 80 P.2d 406, and the numerous cases cited therein.
It is conceivable that a public railroad crossing might possess such features of inherent danger or be so dangerous at a particular time as to require a railroad company in the exercise of ordinary care to take appropriate measures to protect highway travelers from colliding with a train standing on the crossing, but, under the authorities cited, no such case is here presented.
In the pending case, there is an element not present in the Reed case, supra, viz., an alleged violation of Section 7472, General Code, which section reads as follows.:
"A person or corporation, or a conductor of a train of railroad cars, or other agent or servant of a railroad company, who obstructs, unnecessarily, a public road or highway authorized by any law of this state, by permitting a railroad car or locomotive to remain upon or across it for longer than five minutes, or permits timber, lumber, wood, or other obstructions to remain upon or across it to the hindrance or inconvenience of travelers, or a person passing along or upon such road or highway, shall forfeit and pay for each offense, not less than two dollars, nor more than twenty dollars."
Appellant maintains a violation of this section is negligence per se, and that in the instant case its claimed violation was a proximate cause of the collision and ensuing injuries.
Statutes almost identical in language with present Sections 7472 and 7473, General Code, have existed in Ohio since 1853. In relation to railroads, the expressed object is to penalize railroad employees for permitting a railroad car or locomotive to obstruct a highway, unnecessarily, for longer than five minutes to the hindrance or inconvenience of travelers. The underlying purpose is to facilitate the movement of traffic on highways and to discourage unnecessary blockades, causing congestion and delay. Damages directly attributable thereto may be recovered. See Cleveland, C., C. St. L. Ry. Co. v. Tauer, 176 Ind. 621, 96 N.E. 758, 39 L.R.A. (N.S.), 20; Patterson v. Detroit, L. N. Rd. Co., 56 Mich. 172, 22 N.W. 260; Terry v. New Orleans, G. N. Rd. Co., 103 Miss. 679, 60 So. 729, 44 L.R.A. (N.S.), 1069. It takes a far stretch of the imagination to say that the statute was designed or intended as a safety measure to prevent a motor vehicle from being run against the side of a train necessarily occupying its track. See Pennsylvania Rd. Co. v. Huss, 96 Ind. App. 71, 180 N.E. 919; Jones v. Atchison, T. S. F. Ry. Co., 129 Kan. 314, 282 P. 593; Simpson v. Pere Marquette Ry. Co., 276 Mich. 653, 268 N.W. 769; Killen v. New York Cent. Rd. Co., 225 App. Div. 8, 232 N.Y. Supp., 76.
In a situation where a motor vehicle is driven into a train which has occupied a crossing for a period of time in excess of the limit prescribed by statute or ordinance, a majority of the courts take the position that such occupancy is merely a condition, and not a cause of the collision. See Orton v. Pennsylvania Rd. Co. (6 C.C.A.), 7 F.2d 36, involving Section 7472, General Code; Simpson v. Pere Marquette Ry. Co., supra; Webb v. Oregon-Wash. Rd. Nav. Co., 195 Wn. 155, 80 P.2d 409; Hendley v. Chicago N.W. Ry. Co., 198 Wis. 569, 225 N.W. 205. Compare Pittsburgh, C. St. L. Ry. Co. v. Staley, 41 Ohio St. 118, 52 Am. Rep., 74.
It is pointed out in these cases that the collision cannot be ascribed to the excessive time the train has stood on the crossing, because the same result would have followed had the colliding vehicle reached the crossing at any time the train was there.
There is authority to the contrary. See the collection of cases in Reines, Admx., v. Chicago, M., St. P. P. Rd. Co., supra, and also 99 A. L. R., annotation at page 1460.
Of course, to create liability in a tort action of this character, there must be (1) negligence, and (2) such negligence must be a proximate cause of the result of which complaint is made.
Conceding the obstruction of a highway by a railroad train in violation of Section 7472, General Code, would constitute negligence under certain circumstances, one relying on such violation to support an action would have to allege and prove not only that the highway had been obstructed for more than five minutes, but unnecessarily so. The statute so provides. See Trustees of Burton Twp. v. Tuttle, 30 Ohio St. 62, 66; L. E. W. Rd. Co. v. Mackey, 53 Ohio St. 370, 381, 41 N.E. 980, 981, 29 L.R.A., 757, 760, 53 Am. St. Rep., 641, 644.
In the present case the appellant introduced the testimony of two witnesses as to the length of time the train remained at the crossing. Edward L. Austin, who conducted a general store and pool room within a hundred feet or so, estimated the train stopped for about twenty minutes while the switching was going on; and Lena Austin, his sister-in-law, who was also in the store, estimated the time at from twenty minutes to half an hour. Mr. Austin said he heard the switching movements, and Mrs. Austin stated she both saw and heard them.
On the other hand, railroad employees who were members of the train crew, placed the whole time of stoppage at no more than five or six minutes. They further testified in effect that halting the train at the crossing to pick up the car on the siding was the most convenient and expeditious mode of procedure; otherwise an awkward plan would have had to be adopted, whereby the locomotive would have been required to move back and forth over the crossing to complete the assigned task.
Undoubtedly the train had a right to occupy the crossing for legitimate business purposes, and was placed in the position best adapted to accomplish the work to be performed in conformity with standard railroad practice. Nothing beyond conjecture exists to sustain a contention that the crossing was blocked for a period longer than was essential to complete the switching operation, and, as has been observed, an unnecessary obstruction beyond five minutes must be shown before there is any violation of the statute. In connection with this phase of the discussion, particular attention is directed to the recent case of Thomson v. Stevens, Trustee (8 C.C.A.), 106 F.2d 739.
Upon a close examination of the record herein, with due regard for Section 6310-1, General Code, as to the strength of lights required on passenger automobiles, and Section 12603, General Code, providing that a motor vehicle shall not be operated at a greater speed than will permit the driver to stop within the assured clear distance ahead, the conclusion is inescapable that, as a matter of law, Roberts, the driver, was negligent and such negligence was the proximate cause of appellant's injuries.
No error appearing in the judgment of the Court of Appeals, such judgment must be affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS and HART, JJ., concur.
DAY, WILLIAMS and MYERS, JJ., dissent.