Lake Shore Electric Ry. Co. v. Kellar ( 1928 )

The writer regrets that he is unable to concur in the views held and expressed by the majority of the court.

As he understands the rules of law declared by the Supreme Court of Ohio, those rules require the conclusion that the question as to whether or not the plaintiff was entitled to recover for personal injuries was properly submitted to the jury by the court below, and this court cannot properly say, as a matter of law, that the right to recover for personal injuries was barred by the plaintiff's contributory negligence.

As the majority of the court sustains the verdict, so far as it covers the right of plaintiff to recover damages for the automobile destroyed, it would seem to follow that the majority entertains the view that the plaintiff was not guilty of negligence as a matter of law in going upon the track in the first instance, or permitting his automobile to stall thereon, if he did; for, if he were guilty of contributory negligence as a matter of law in so doing, final judgment should be entered in this court for the plaintiff in error. This phase of the case involves the principle declared in D., T. I. Rd. Co. v. Rohrs,114 Ohio St. 493, 151 N.E. 714. In view of the conflict in the evidence, it seems certain that question was properly one for the jury.

The doctrine of last chance applies to this case. PennsylvaniaCo. v. Hart, 101 Ohio St. 196, 128 N.E. 142. The motorman testified that he first saw plaintiff's automobile when it was going upon the track, and at that time the electric car was 400 feet from the crossing. There is also evidence tending to show that the motorman stopped the electric car in from 575 to 600 feet. There is also evidence in the case tending to show that the electric car was much more than 600 feet from the crossing when the automobile went upon the crossing. One witness, riding in an automobile along the road, testified that the electric car was then coming around the curve. The evidence upon the point as to where the electric car was at that time is very conflicting and presented an issue of fact for the determination of the jury.

It is axiomatic to say that, if the defendant was guilty of negligence in getting into a place of danger, and stalled upon the track, his negligence in that respect ceased when he got there; and as there was evidence tending to show that his negligence ceased long enough before the motorman actually saw the car stalled on the track to have enabled him to stop his car and prevent the collision, the action was properly submitted to the jury under the doctrine of last chance, unless the plaintiff was guilty of contributory negligence as a matter of law in not getting off the track into a place of safety before the collision. In fact, the doctrine of last chance was applied as to plaintiff's right to recover for the automobile, and the majority of the court sustains his right to recover in that respect.

Upon this phase of the case we must remember that, when plaintiff's automobile stalled, he was confronted with an emergency and placed in sudden and unexpected peril. The rule applicable to such cases is stated in 20 Ruling Case Law, page 29, Section 22, from which we quote:

"It follows from what has been said that anything which operates to deprive a person of the ability to exercise his intellectual powers and guide his acts thereby will relieve him of an imputation of negligence, that otherwise might arise from his conduct. Emergencies or sudden perils illustrate this proposition. The rule judically stated is that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence."

A person who is confronted with an emergency is not thereby relieved of the duty to exercise ordinary care, but one who is driving an automobile, which stalls unexpectedly upon a railroad track, cannot be said to be guilty of contributory negligence as a matter of law, except in the most extreme cases. The facts in the case of Buell, Admx., v. New York Central Rd. Co., 114 Ohio St. 40, 150 N.E. 422, presented an extreme instance, as all the party killed in that case would have had to do was to step back to a place of safety.

According to some of the evidence, the car was stalled upon the track a very short length of time. At 35 miles an hour the electric car would travel the 1,980 feet between the curve and a point 400 feet from the crossing in a little less than 30 seconds. The evidence upon the issue of contributory negligence of plaintiff in failing to get off the track involved a mixed question of law and fact, and was properly submitted to the jury.