Cleve. C. C. & St. L. Ry. Co. v. Hosler

The following is taken verbatim from the opinion.

OPINION OF COURT.

PARDEE, J.

Defendant’s counsel claims, in his brief and oral argument, that the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law, and that the trial judge ought to have directed a verdict for the defendant, upon that ground.

At the conclusion of the plaintiff’s case, the defendant made a motion to take the case from the jury. The motion was overruled, the overruling of which is one of the grounds of erior about which complaint is made.

The motion admitted, for the purposes of the motion, all the facts and inferences to be drawn therefrom, which the evidence, in any way, tended to prove, most favorable to the plaintiff; this, then, established that the watchman invited the plaintiff to cross, at the time and under the circumstances as claimed by the plaintiff; that the plaintiff looked and listened at the time and place as testified to by him; that he could not see to the north, when upon said crossing, until he was right up to the west bound main track, and that he was driving at the rate of approximately ten miles an hour and the train was going at the rate of 70 miles an.hour. Therefore, under these admitted facts, neither the trial court nor this court could or can properly say, upon said motion, that the plaintiff was guilty of negligence as a matter of law.

If the plaintiff went upon the track, as claimed by him, upon the affirmative invitation of defendant’s agent, the degree of care required of him would be greatly different than required if he went upon the track without such invitation. It is a matter of common knowledge that it frequently happens that watchmen at railroad crossings signal pedestrians and others to proceed, and that great reliance is placed upon such signal. This, then, relieves the person of that degree of care which would be íequired if such signal had not been given.

From a careful examination of the record, we do not find any error therein, prejudicial to the plaintiff in error. Judgment will therefor»- be affirmed.

(Washburn, PJ., and Funk, J., concur.)