Toledo Terminal Railroad v. Hughes

DAY, J.

1. A traveler approaching a railroad crossing at which he knows an automatic signal is maintained, while entitled to place some reliance upon the indication of safety which silence of the signal implies, is nevertheless bound to use such care in addition as an ordinarily prudent man would use under such circumstances.

2. Where the pleadings and statement of counsel of what he expects the evidence to show disclose that the driver of an automobile, with knowledge of the existence of a railroad crossing the highway at grade, so drove his automobile that when, upon discovering a freight train standing upon the tract, “he swung his wheels to the left, and the rear end of the car swung around and caught between two freight cars. The train then started and dragged him off the road into the ditch”, tht railroad company having no knowledge of his presence, such accident occurring at night, in a dense fog, when “it was very hard to distinguish objects ahead”, and, by reason of an automatic signal not being in operation, “he was unable to tell just the exact location, or in fact tell at all that the road was blocked and that _ there was a • train on the track at that particular point”, such driver is guilty of contributory negligence which justifies the direction of a verdict against him, even though automatic warning signals located at such crossing wree not working, nor other" warnings given by the railroad company.

Judgment of the Court of Appeals reversed and that of the Common Pleas affirmed.

Marshall, CJ., Jones, Matthias, Kinkade and Robinson, JJ., concur. Allen, J., concurs in proposition one of the syllabus and in the judgment. ■ ■ i