Detroit, T. & I. Rd. v. Bauer , 2 Ohio Law. Abs. 408 ( 1924 )

This was an action in the Clark Common Pleas for damages for the death of Bauer, at a railroad crossing. The issues for the jury were negligence of defendant in allowing obstruction, alleged bad order of electric alarm bell, alleged failure to ring ocomotive bell, alleged excessive speed for train, etc.; contributory negligence of Bauer in failing to look and listen, and in driving his- automobile on the track immediately in front of approaching train. The trial resulted in a general verdict for the defendant, and findings upon seven special interrogatories, favorable to defendant.

The Court of Appeals held that there was error in giving two special instructions, in submitting to the jury certain special interrogatories, and that there was undue repetition of special charges with the giving of four special interrogatories upon the issue of contributory negligence.

Attorneys — Keifer & Keifer, for Railroad Co.; Martin & Corry, for Bauer; all of Springfield.

The two special instructions given to the jury at the request of the railroad company which the Court of Appeals found erroneous are as follows:

“5. The fact that the view of one approaching a railroad crossing was obstructed did not excuse his neglect to stop and listen, it made his neglect to do so greater.”

“12. I charge you that Charles Bauer had a duty to look as far up the track for a train as an ordinarily prudent man would look, and he had no right to limit his looking to the distance over which a train running at any particulai rate of speed would travel while he was crossing the track, when by looking- he could have seen further, and an ordinarily prudent man would have looked further.”

The four special interrogatories upon the issue of contributory negligence, the submitting of which at the request of the defendant the Court of Appeals found was error are as follows:

“1. Could the decedent, Charles Bauer, have seen the approaching train in time to stop his automobile before driving it upon the tracks?

“Answer: Yes.

2. How far was the decedent, Charles Bauer, from the track when he could have first seen the approaching train?

“Answer: Yes, 15 feet.

“8. At what points before he went on the track could the decedent. Charles Bauer, have seen this approaching train?

“Answer: Yes, two points; one north, one south of old house.

“6. Could the decedent, Charles Bauer, have heard the whistle or the ringing of the bell of the locomotive, if you find that such bell was rung, or the noise of the approaching train, if he had listened for same before going upon the track ?

Answer: Yes.”

The charges upon the subject of contributory negligence given at the request of the counsel for the Railroad Company in the giving of which the Court of Appeals found there was error in undue repetition, have to do with the duty of Bauer in approaching the railroad crossing and looking for trains and were substantially repetitions of the above special instructions given to the jury, and state' and restate the duties of travelers so as to present the law in its different aspects. It is claimed that the Court of Appeals erred in its holding that there was error in the special charge and 'interrogatories, and the Supreme Court is asked to reverse its decision.