Summary
In North the obstruction to the automobile driver's view was an accumulation of brush, as Davidson claims obstructed her view.
Summary of this case from Davidson v. CSX TransportationOpinion
No. 40128
Decided March 22, 1967.
Negligence — Motor vehicles — Driver approaching railroad grade crossing — Duty to look and listen for approaching trains — Time and manner of looking — Appeal — Order granting summary judgment — Appellant to define area of factual dispute — Reviewing court to state facts concerning which dispute exists.
1. The driver of a motor vehicle, about to pass over a railroad grade crossing on a public street, must exercise his senses of sight and hearing to discover whether trains are also about to pass over such crossing, and such exercise of the senses must be made at such time and place as to be effective for the purpose. (Syllabus of Boles v. Baltimore Ohio Rd. Co., 168 Ohio St. 551, approved and followed.)
2. Appellate courts in reviewing orders allowing motions for summary judgment should require the appellant, upon whom the duty of demonstrating prejudicial error rests, to define the area in which a material factual dispute exists.
3. Appellate courts when reversing orders granting motions for summary judgment should state in the reversal order the material facts concerning which a genuine dispute exists.
APPEAL from the Court of Appeals for Stark County.
The plaintiff while driving his automobile on a public highway collided with the diesel engine of the defendant Pennsylvania Railroad Company, which entered the highway from his left. The diesel engine was being operated on a spur line of the defendant Macomber, Inc., and was backing into the crossing, pulling a string of cars. The plaintiff's automobile collided with the rear corner of the diesel engine, that being, of course, the first part of the train to enter the crossing. Plaintiff's petition specifies that defendant Macomber was negligent in that it permitted a large growth of hedges, weeds and tall grass to exist in the vicinity of the crossing, obstructing the view of those who proceeded south on the highway, as did the plaintiff, and preventing such drivers from clearly seeing the movement of locomotives or trains. Additionally, the plaintiff specifies that there were no light signals or warnings of any kind on the property or given by those operating the train to warn those traveling south on this highway that there was a spur at that point and that an engine was about to enter the crossing. Each of the defendants by answer denies that it was negligent and each affirmatively alleges that the accident and the injuries to the plaintiff occurred solely as a result of the plaintiff's negligence.
Counsel for defendants then took, and filed, a deposition of the plaintiff-driver which disclosed quite clearly that the plaintiff had prior knowledge of the existence of the crossing, having crossed it many times before. This deposition disclosed that plaintiff first saw the train entering the crossing from his left when he was some 80 to 90 feet back from the crossing and was going 30 to 35 miles per hour. The trial court sustained the motions of the defendants for summary judgment and specifically found that the plaintiff was guilty of contributory negligence so as to render immaterial all issues of fact concerning the negligence of the defendants as charged in plaintiff's petition.
The Court of Appeals held that there was a material issue of fact concerning which there was a genuine dispute and reversed the judgment and remanded the cause.
In so doing the Court of Appeals relied upon Woods v. Brown's Bakery, 171 Ohio St. 383. That case discusses the application of the assured-clear-distance rule (Section 4511.21, Revised Code). It concerns the situations in which the rule depends for its applicability upon a factual determination of the point at which the object with which collision occurred entered into the plaintiff's path or line of travel.
The Court of Appeals also cited White v. Ohio Power Co., 171 Ohio St. 148, apparently for the purpose of showing that, if reasonable minds can disagree as to whether it was the negligence of the defendant or the negligence of the plaintiff which was the proximate cause of an accident claimed to have resulted in injuries to the plaintiff, then that question is one for the jury.
The cause was admitted to this court upon the allowance of a motion to certify the record.
Mr. William S. Georges, for appellee.
Messrs. Amerman, Burt, Shadrach, McHenry Jones, Messrs. Hart Hart and Mr. Ian Bruce Hart, Jr., for appellants.
The motion to certify was allowed not because the case involved any new or novel question of negligence law but because of this court's interest in seeing the summary-judgment procedures used effectively. The summary-judgment statute (Section 2311.041, Revised Code) was enacted with a view to eliminating from the backlog of cases which clog our courts awaiting jury trials those in which no genuine issue of fact exists. The availability of this procedure and the desirability of its aims are so apparent that its use should be encouraged in proper cases.
With this in mind, appellate courts reviewing orders allowing motions for summary judgment should require the appellant, upon whom the duty of demonstrating prejudicial error rests, to define with great specificity the area in which a factual dispute exists, and this court should review as of public or great general interest doubtful reversals in this area. It would facilitate review in this area if Courts of Appeals when reversing orders granting summary judgment would state in the entry of reversal the specific material facts concerning which a dispute exists requiring reversal.
There are many Ohio Supreme Court cases defining the duty of persons approaching railroad grade crossings. The syllabus in Boles v. Baltimore Ohio Rd. Co., 168 Ohio St. 551, states:
"The driver of a motor vehicle, about to pass over a railroad grade crossing on a public street, must exercise his senses of sight and hearing to discover whether trains are also about to pass over such crossing, and such exercise of the senses must be made at such time and place as to be effective for the purpose. ( Detroit, Toledo Ironton Rd. Co. v. Rohrs, 114 Ohio St. 493, and Patton v. Pennsylvania Rd. Co., 136 Ohio St. 159, approved and followed.)"
Hence, the plaintiff's duty in this case was a duty separate and apart from his duty to keep his car under control so as to be able to stop within the assured clear distance ahead. The plaintiff's failure under the circumstances of this case to observe that an engine was about to enter his path was, under this court's holding in Boles v. Baltimore Ohio Rd. Co., supra, the proximate cause of the collision and the plaintiff's injuries. Whether the train entered the plaintiff's line of travel so as to cut down his assured clear distance in this case was immaterial; so also was the effect of obstructions to the plaintiff's view on property adjacent to the highway.
If the physical conditions in proximity to the track were as contended by plaintiff in his petition, such matters served only to require the exercise of greater care in accordance with the conditions. Baltimore Ohio Rd. Co. v. McClellan, Admx., 69 Ohio St. 142; Toledo Terminal Rd. Co. v. Hughes, 115 Ohio St. 562; Pennsylvania Rd. Co. v. Rusyuik, 117 Ohio St. 530.
The judgment of the Court of Appeals is reversed, and the judgment of the Court of Common Pleas granting summary judgment is affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.