Ware v. Cincinnati Northern R R ( 1931 )

LLOYD, J.

The railroad contends that Ware was guilty of contributory negligence as a matter of law because of his driving along the sidetrack as he did, without looking at a place where the looking would have been effective, and cites the cases of

D. T. & I. Ry. Co. v Rohrs, 114 Oh St, 493;

Railroad Co. v Hughes, 115 Oh St, 562;

Railroad Co. v Rusynik, 117 Oh St, 530.

These were all crossing.cases and, as we view it, are inapplicable to the situation shown by the evidence in the instant case. Assuredly it was the duty of Ware to exercise ordinary care, but it seems to us that the facts and circumstances presented in the record under review are such as to require submission to a jury of the question of his alleged contributory negligence. There is no evidence that 'the engine and cars were in sight or were approaching when he turned into the space between the light and power plant and the sidetrack and none that had he then looked it would have availed anything by way of warning. Employes of the railroad testified that the switch or sidetrack “had been in service” for twenty or more years and that during this period the use thereof “had been continuous and without interruption,” but other than this, there is no evidence as to how frequently switching was done or cars operated thereon. It is not our understanding that, under the facts and circumstances shown by the evidence, Ware was bound as a matter of law ,to be on the continuous lookout for approaching danger.

The judgment is reversed and the cause remanded to the Court of Common Pleas for further proceedings according to law,

RICHARDS and WILLIAMS, JJ, concur.