W. & L. E. Ry. Co. v. Kohn

WARDEN, J.:

Epitomized Opinion

The. Ry. Co. placed a number of freight cars on a switch east of Woodford Avenue, Toledo, and while Kohn was crossing the switch the cars were set ip motion, striking and injuring Kohn. Kohn alleged that the Company was in the habit of placing an employe at that point to warn passersby of its intention to move cars, but that on this occasion no employe was so placed nor was any other warning-given. Kohn failed to prove that he listened for approaching cars before entering upon the tracks and the Company raises the question of contributory negligence. Verdict .for Kohn in the lower court. Held by the Court of Appeals iii affirming the judgment:

1. Failure of a Ry. Co. to warn a passerby of its intention to move ears across a public street, when it was the custom of the Company to so warn passersby, and that custom, was known and relied .upon by plaintiff, is negligence. -

2. Failure, of Kohn to testify that he listened for cars is a circumstance which the jury may take into consideration in determining whether or not the presumption that Kohn exercised care is overcome. '

3. Drawing inference from fact is a matter for the .jury and is not a function of the court;

■4.' When the trial statement of the defendant states the number of cars in the train the defendant cannot later be permitted to question that statement.

5. Admission of expert testimony as to the effect of snow upon the transmission of sound is not error.

6. The Court of Appeals cannot consider the weight 'of evidence in a case which has previously been reversed by the Court of Appeals on the weight of evidence.