Opinion
No. 26684
Decided February 9, 1938.
Negligence — Crossing collision between interurban car and automobile — Special finding by jury not inconsistent with general verdict for plaintiff — Looking and listening upon approaching tracks.
When the pleadings allege that the driver of an automobile looked and listened for the approach of an interurban car when about ten feet from the crossing, a special finding that if he had looked when six or eight feet from the crossing he would have seen an approaching car is not inconsistent with a general verdict in favor of the driver of the automobile.
APPEAL from the Court of Appeals of Franklin county.
This matter is here on appeal from a judgment of the Court of Appeals of Franklin county reversing and remanding a judgment entered in the Court of Common Pleas in favor of the defendants, appellants herein, who are the receivers of the Cincinnati Lake Erie Railroad Company.
The plaintiff, Ora J. Fox, appellee herein, instituted this action against the defendants, alleging that on the night of November 24, 1934, he was injured when the automobile which he was driving was struck by one of the interurban cars operated by the defendants at a crossing just outside the city limits of Columbus, Ohio.
In his petition plaintiff alleged that the agents of the defendants failed to give any warning signals, failed to have any lights upon the front end of the car, and operated the car at a speed of eighty miles per hour. In their answer the defendants denied any negligence and alleged in a separate defense contributory negligence on the part of the plaintiff.
At the trial, the jury returned a verdict in favor of the plaintiff for $7,500. However, three interrogatories or special findings were submitted to the jury and were answered in the following manner:
Interrogatory No. 1. "Do you find from the evidence that the whistle on the interurban car was blown as the car approached the crossing in question?" Answer: "No."
Interrogatory No. 2. "Do you find from the evidence that in operating said car at said time and place there was on the front end of said car a light or lights turned on or lighted?" Answer: "Yes, dim."
Interrogatory No. 3. "If the plaintiff Ora Fox had looked westward from his automobile when it was 6 or 8 feet north of the interurban tracks and just before he started to approach the tracks with his automobile, could he have seen the approaching interurban car?" Answer: "Yes."
Upon a consideration of a motion notwithstanding the verdict, the Court of Common Pleas held that the answer to the third special finding was inconsistent with the general verdict and therefore entered final judgment for the defendants.
Upon appeal to the Court of Appeals, this judgment was reversed and the proceedings remanded to the trial court. Upon appeal to this court, the defendants contend that the judgment of the Court of Common Pleas was correct and that final judgment in their favor should be entered in this court. A motion to certify the record was allowed, and the matter is before this court on its merits.
Messrs. Knepper, White Dempsey, for appellee.
Messrs. Martin Corry and Messrs. Eagleson Laylin, for appellants.
The jury in its special findings found that the whistle on the interurban car was not blown as it approached the crossing, and the car was being operated with dim lights. The petition likewise alleged that the car was being operated at a speed of eighty miles an hour. In determining whether the special findings are inconsistent with the general verdict the court does not consider the evidence, but only the pleadings, issues and special and general findings. Board of Commissioners of Mercer County v. Deitsch, 94 Ohio St. 1, 113 N.E. 745.
There was, therefore, ample to show negligence on the part of the defendants. The only question is whether the special finding of the jury shows that the conduct of Fox constituted contributory negligence which would prevent his recovery upon the general verdict.
If the special finding in answer to the third interrogatory was clearly and irreconcilably in conflict with the general verdict, the judgment of the Court of Appeals should be reversed and that of the Court of Common Pleas affirmed. Davis v. Turner, 69 Ohio St. 101, 68 N.E. 819.
In Columbus, Delaware Marion Electric Co. v. O'Day, Admx., 123 Ohio St. 638, 176 N.E. 569, the question submitted to and the answer given by the jury were: "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."
In that case the jury found that if O'Day, the driver of the automobile, had looked he would have seen the interurban car in time to have stopped his automobile in a place of safety. Since he had failed to look as he approached the track, his failure constituted contributory negligence.
Not only was a different question propounded in this case, but the facts are also dissimilar. In the petition it is stated that Fox "looked in both an easterly and westerly direction for an approaching car and listened for the signal of the approaching said car" when about ten feet from the track. Taking this in connection with the special finding, it must be conceded that Fox looked when about ten feet from the crossing, but failed to look when six or eight feet from the tracks.
Furthermore, under the somewhat ambiguous interrogatory submitted, the jury did not make a finding that if Fox had looked when six or eight feet from the crossing and had seen the approaching car he could have stopped his automobile before reaching the tracks. This court is unable to assume as a matter of law that he could do so.
A driver of an automobile while approaching a crossing must exercise ordinary care, which imposes upon him a duty to both look and listen. Cleveland, Cincinnati, Chicago St. Louis Ry. Co. v. Lee, Admr., 111 Ohio St. 391, 397, 398, 145 N.E. 843; Detroit, Toledo Ironton Rd. Co. v. Rohrs, 114 Ohio St. 493, 151 N.E. 714; Toledo Terminal Rd. Co. v. Hughes, 115 Ohio St. 562, 154 N.E. 916; Columbus, Delaware Marion Electric Co. v. O'Day, Admx., supra; Lohrey v. Baltimore Ohio Rd. Co., 131 Ohio St. 386, 3 N.E.2d 54. He must look and listen at such time and place and in such manner as will make the looking and listening effective. Pennsylvania Rd. Co. v. Rusynik, 117 Ohio St. 530, 159 N.E. 826, 56 A. L. R., 538; Detroit, Toledo Ironton Rd. Co. v. Rohrs, supra.
But, as was said by Judge Allen, "the law does not prescribe the exact point at which the traveler on the highway is to look and listen." Cleveland, Cincinnati, Chicago St. Louis Ry. Co. v. Kuhl, Admx., 123 Ohio St. 552, 558, 559, 176 N.E. 222.
Consequently, inasmuch as it must be presumed Fox did look and listen when ten feet from the crossing, we cannot say that he was negligent as a matter of law if he failed to look when six or eight feet from the track, when there is no finding that had he then looked he would have been able to stop his automobile. Neither can the court say as a matter of law that his failure to look when six or eight feet from the crossing directly contributed to his injuries.
Under such circumstances, the special finding of the jury was not inconsistent with the general verdict, and the judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS and MYERS, JJ., concur.