Cleveland Electric Railway Co. v. Wadsworth

1 Ohio C.C. (n.s.) 483, 1903 Ohio Misc. LEXIS 198

• Court: Ohio Circuit Courts
• Decided: March 23, 1903
• Status: Published

Opinion

IiAUBIE,. J.

This is a proceeding in error brought to reverse judgment of the court belotw, rendered in favor of Wadsworth against the company for personal injuries received while crossing the tracks of the company 'at Auburndale avenue, in East Cleveland.

On the trial at the conclusion of the evidence, counsel for thie railway company made a motion to take the case from the jury and for the court to enter judgment’ for defendant, which the court refused to do, and in this respect we think the court erred.

The evidence on the part of the plaintiff differed in no great respect from the evidence introduced on the part of the defendant as to the accident, and the whole evidence showed -beyond any rational -doubt that Wadsworth was himself guilty of contributory negligence. He was on the car going east, amid he notified the conductor that he desired to get off at Auburndale avenue. The conductor gave the signal to the m-otorman -and the ear began to slow up. Wadsworth was on the rear end of the car, and as the ear slowed up and just before it reached the crossing, he notified the conductor that he -might go ahead, and he stepped off. Immediately the conductor gave the motorman the signal to go ahead, and the car started at an increased rate of speed. As Wadsworth stepped off, he stepped off facing east. He says he turned around and walked around the end of the car -across the first track and onto the devil strip toward the second track at 'an ordinary gait, and as he was still stepping forward 'and was about to touch the south rail of the westbound -track, he saw the west-bound -car and its headlight' in front -of him, -and some portion of the oar struck him and knocked him down and injured Mm. He had -been living at Aubumdale avenue f-or some -considerable time, and bad been using the cars- of the street railway company -daily; he knew of -the situation, the surroundings, -and he knew that -ears were in the habit of running there on those tracks substantially every three minutes; that he was not up-on the cross-walk, or where the cross-walk should be, but that -he got -off just before he reached the cross-walk. He testified that' he remembered all that to-ok place unti-l he was struck, and after that he remembered nothing until after he was at the hospital. On this trial he claimed -he remembered everything -that' occurred up to the time he was struck, although he did not on- a former trial; but he admitted that' while upon the car he was thinking -of some matters of business that he had to- attend to. the following day. He could not remember, as -he walked across the trades, what he was thinking of then. -So that, so far as his mind was concerned, it was -not upon Ms surroundings at all; he had not in Ms mind the fact that Cars were running as frequently as he named, westward •upon'the west-bound track wMeh he had to cross, and he -did not look to see; he neither stopped to observe nor did he 1-ook eastward upon' the west-bound track. That was the only direction from which danger could be apprehended, and he was not required to 1-ook in both directions, as no cars ran eastward upon the west-bound track. With ail this knowledge of the surrounding circumstances and the danger to be apprehended, his mind was mot upon the danger, n'o-r upon the question of Ms own safety, no-r whether any car that might he coming from the east might injure Mm. Without regard at any time to the surroundings-, he was simply going, as he s-ays, at an ordinary gait, and as some of his own witnesses testify at a very lively, quick gait, and .he stepped right forward 'and was in the. act of.still stepping forward when he was struck. He just had time, he said, to throw up his hands. It was somewhere between 10 and 11 o’clock at night and the head-light on the west-bound car was burning brightly.

Now, under such circumstances, even upon his own testimony, which was in no sense different from that of all-the other witnesses, it is evident that there could be no rational conclusion save that his own negligence contributed to his injury.

There can be no question about the negligence of the railway company, of the men who were in charge of the west-bound ear; they were running at too great a rate of speed, in passing a oar that was stopping at this crossing. But it is evident, from his own testimony, and from all the testimony in the case, that as the plaintiff was himself guilty of negligence contributing to his injury, he could not recover.

There was no question to submit to the jury; it was simply a question of law for the court to determine, whether or not he had a right to recover.

The case is entirely different from the case referred to in the 54 O. S., of The Cincinnati Street Railway Company v. Snell; and is precisely the same character of case referred to by Judge Spear, in the majority opinion) in the Snell case when he said, page 201:

“The ground upon which the common pleas directed a verdict was that the plaintiff’s evidence disclosed contributory negligence of such a character as to preclude recovery. In other words, the holding was that, as a matter of law, the plaintiff was guilty of contributory negligence. If the plaintiff’s conduct, as shown by undisputed facts, left no rational inference but that of negligence, then the ruling was right, but if the question of contributory negligence depended npon a variety of circumstances from which different minds might arrive at different' conclusions as to whether there was negligence or not, then the ruling was wrong.”

The recovery was affirmed in the Snell case because the plaintiff himself testified that he looked in both directions at the time for an approaching car.

The testimony here was precisely the opposite, and it was the duty of the court under the circumstances, to take the ease from the jury and render judgment for the defendant.

Squire, Sanders <&■ Dempsey, for plaintiff in error. J. W. Taylor, W, H. Boyd and T. H. Garry, for defendant in error.

Proceeding to render, therefore, the same judgment that the court below should bare rendered, tbe judgment below will be reversed and judgment entered for the railway company for its costs, and the pettitaon of tbe plaintiff dismissed.