Opinion
No. 22134
Decided June 4, 1930 Reheard and decided May 20, 1931.
Negligence — Automobile and interurban collision at crossing — Special findings control over general verdict — Driver could have seen interurban, but did not look — Automatic signal alarm, voluntarily established, constitutes merely a warning — No implied invitation to cross when signal not operating — Traveler to exercise reasonable care, including looking and listening.
1. Where an action for damages is instituted, arising out of the collision upon a highway of an automobile and an interurban car, and the jury in answer to certain interrogatories states that if the decedent, the driver of such automobile, had looked he would have seen the interurban car in time to stop his automobile in a place of safety, and also answers that the decedent did not look in the direction of the oncoming interurban car when he was far enough from the interurban railroad track to stop his automobile before reaching the crossing, it is reversible error for the trial court to overrule the defendant's motion for judgment upon the interrogatories.
2. Where an automatic signal alarm, voluntarily instituted and operated by an interurban street railway company at a city street crossing, fails to operate as a traveler approaches such crossing, its failure to operate is not in the nature of an implied invitation to cross. The alarm constitutes a warning merely.
3. The presence of an automatic signal alarm, voluntarily instituted and operated by an interurban railway company at a city street crossing, does not absolve a traveler upon the highway from the exercise of the care that a reasonably prudent person would exercise under all the circumstances. Such care upon the part of a driver of an automobile includes the obligation of exercising the faculties of sight and hearing, when such driver is far enough from the railway track to be able to stop his automobile before reaching the crossing.
ERROR to the Court of Appeals of Franklin county.
This action arises as an error proceeding to the judgment of the Court of Appeals of Franklin county. The action was filed by Ella O'Day, administratrix of the estate of Ralph O'Day, deceased, for damages for the wrongful death of her decedent, arising out of a collision between an automobile driven by the decedent and an interurban car at a street crossing in the city of Columbus, Ohio.
The accident occurred at about seven o'clock in the morning, on Oakland Park avenue, within the city limits. The petition set forth averments of negligence on the part of the defendant company, charging excessive speed in violation of a city ordinance, failure to sound whistle or give warning of approach of the car, and maintenance by the company of an electric signal with lights in the swinging arm which upon the occasion in question failed to operate. The signal was shown to be voluntarily erected and maintained by the company. The petition also averred that the motorman failed to have his car under proper control. The answer, after admitting the formal allegations, denied the other allegations of the petition.
At the trial the following interrogatories, submitted at the request of the defendant, were answered as follows:
"Interrogatory No. 1: If Ralph O'Day had looked as he approached the track of The Columbus, Delaware Marion Electric Company on Oakland Park avenue on the morning of April 11, 1927, would he have seen the interurban car in time to stop his automobile in a place of safety? Answer: Yes."
"Interrogatory No. 2: Did Ralph O'Day as he approached the track of The Columbus, Delaware Marion Electric Company on Oakland Park avenue on the morning of April 11, 1927, look to the south for an interurban car when he was far enough from the railroad track to stop his automobile before reaching the crossing? Answer: No."
The jury returned a general verdict in favor of the plaintiff. The railway company moved for judgment upon the special interrogatories, and this was denied. The Court of Appeals affirmed the judgment of the court of common pleas. The case comes into this court upon allowance of motion to certify the record.
Mr. William P. Moloney, for plaintiff in error.
Mr. John A. Connor and Mr. Harry P. Nester, for defendant in error.
This case is sharply distinguishable from the case of Henderson v. Cleveland Ry. Co., ante, 468, 175 N.E. 863, recently decided. There is a material distinction between the situation presented where a pedestrian or traveler in an automobile acts upon the "go" signal of a traffic light required by a municipality to be maintained at an intersection, and the situation here presented, where a traveler approaches an intersection at which an automatic signal is maintained and operated purely on its own initiative by a public utility. In the first instance, there is a positive prohibition imposed by law upon entrance by any traffic into the intersection in opposition to the light. In the second instance, the signal is a warning merely. It indicates the presence of the railroad and the possibility of danger. It does not, and cannot, as in the Henderson case, supra, give notice of the fact that a car or train is prohibited by law from proceeding along the track. The signal voluntarily operated by the utility is merely intended to impress upon the mind of the approaching traveler more vividly than by any other means the fact that before him lies a dangerous track which he must cross.
Since the jury found that O'Day could have seen the interurban car in time to stop his automobile in a place of safety if he had looked, and that he did not look to the south for an interurban car when far enough from the railroad track to stop his automobile before crossing, the trial court committed reversible error in not rendering judgment for the defendant. The conflict was clear and irreconcilable as between the special findings and the general verdict in favor of the plaintiff. Davis v. Turner, 69 Ohio St. 101, 68 N.E. 819. Since the jury found these facts, necessarily the decedent was guilty of contributory negligence. Under Section 11464, General Code, the special findings control, and therefore the motion for judgment upon the interrogatories should have been sustained. Central Gas Co. v. Hope Oil Co., 113 Ohio St. 354, 149 N.E. 386.
Judgment reversed and judgment for plaintiff in error.
MARSHALL, C.J., MATTHIAS, KINKADE and ROBINSON, JJ., concur.
JONES, J., not participating.