Detroit & Ironton Rd. Co. v. Vogeley , 21 Ohio App. 88 ( 1925 )

Minnie Vogeley, the defendant in error here, filed her petition as plaintiff in the court of common pleas of Fulton county against the plaintiff in error here, defendant below, to recover damages sustained to her automobile while passing over the crossing of the defendant company at Wauseon. There is no question that the plank at the crossing had been taken up, leaving a deep hole between the rails, that as the automobile passed over it its front wheels dropped into the excavation, and that the engine of the automobile hit the nearer rail and was considerably damaged.

It is claimed that the court erred in the introduction of evidence by permitting the plaintiff to testify as to the value of her own car. We think there was no error in this, for the reason that, as a general rule, the owner of personal property has, by reason of the fact of ownership, a sufficient knowledge of its value to be qualified to testify regarding it.

It is claimed that the court erred in striking out the second defense of the answer, and the interrogatories attached thereto. The interrogatories pertain wholly to the matter averred in the second defense, and if the court was warranted in striking out the second defense, it was also warranted in striking out the interrogatories, for the motion to strike was equivalent to a demurrer to the second defense and to the interrogatories. We think the second defense was insufficient and demurrable for the reason that it did not contain an averment that the alleged settlement between the plaintiff and the insurance company took place prior to the commencement of the action in the court of common pleas. If such settlement took place after the commencement of the action, the cause could proceed in the name of the original plaintiff, under Section 11261, General Code of Ohio, notwithstanding subsequent assignment or transfer of a right of action. By no means are we holding, however, that the defense would be good even though it had contained the averment referred to.

It is claimed that the court erred in failing to direct a verdict, for the reason that the evidence did not tend to show any duty resting upon the defendant to keep the crossing in repair. Counsel for plaintiff in error, in argument, conceded that whoever was responsible for keeping up the crossing was negligent. We may say, further, that it appears from the uncontradicted evidence that the negligence of the party whose duty it was to keep up the crossing was the direct and proximate cause of the injury to plaintiff's automobile. The defendant in its answer admitted that it was a corporation formed for the purpose of operating a railroad in the states of Ohio and Michigan. The plaintiff testified that she attempted to "cross the crossing of the Detroit Ironton Railroad Company on the day" in question; that when she was crossing that crossing her automobile went into a hole that had been left there, and the damage to the automobile was thereby sustained. There is no cross-examination of the plaintiff in the record. After the plaintiff rested, the defendant offered no evidence. The extent to which the defendant had control over the crossing in question was a matter peculiarly within the knowledge of the defendant company. Its silence was therefore significant. We think that the undisputed evidence in the case is that the crossing was the crossing of the defendant company, and that the inference follows from the undisputed evidence that the railroad was being operated by the defendant company.

Therefore, under Section 8843, General Code, the railroad company would be charged with keeping the crossing in repair. The mere fact that another company, the Detroit, Toledo Ironton Railroad Company, had at some other time operated, or was then operating, trains over the same track, would not, of itself, relieve the defendant from its duty to keep the tracks in repair. Maumee Valley Railways Light Co. v.Montgomery, 81 Ohio St. 426, 91 N.E. 181, 26 L.R.A., (N.S.), 987, 135 Am. St. Rep., 802; Quigley, Guardian, v. Toledo Railways Light Co., 89 Ohio St. 68, 105 N.E. 185, L.R.A., 1918E, 249, Ann. Cas., 1915D, 992.

The court in its charge stated that the defendant had filed its answer in which it admitted that it was operating a railroad, as in the amended petition set forth. This statement is somewhat stronger than the admission actually contained in the answer, but under the undisputed evidence we think it was not prejudicial error on the part of the court to make such a statement in the charge.

We find no prejudicial error in the record, and the judgment is affirmed.

Judgment affirmed.

RICHARDS and YOUNG, JJ., concur.