
    TESTING A JUDGMENT BY THE ANSWER. TO A SPECIAL INTERROGATORY.
    Circuit Court of Hamilton County.
    Arabella Spillman, Executrix, v. Baltimore & Ohio Southwestern Railroad Co.
    Decided, January 20, 1906.
    Where, in an action for wrongful death, the jury in answer to a special interrogatory find that if the decedent had looked when within five feet of the railway track he could have seen whether a train was .approaching, a judgment for the defendant is justified, notwithstanding a general verdict for the plaintiff, if the evidence discloses no reason for the decedent not looking in the direction from which the train was approaching.
    
      Theodore Horstman and W. H. Whittaker, for plaintiff in error.
    
      Harmon, Colston, Goldsmith & Hoadly, contra.
   Per Curiam.

In this case the court rendered a judgment for the defendant upon certain special interrogatories and answers thereto, notwithstanding the general verdict in favor of the plaintiff. The only-interrogatory and answer, if any, that would authorize the court to render judgment in favor of the defendant is as follows:

“Q. Do you find from the evidence that when the decedent, Spillman, was within five feet of the south rail of the east main track, if he had looked to the west for the purpose of ascertaining whether or not a train was approaching the crossing in question, he could have seen the same in time to have avoided the collision? A. Yes.”

This interrogatory leaves out of consideration all question of any reasonable excuse for not looking in the direction from which the train was coming. But the evidence, all of which is contained in the bill of exceptions, discloses no such excuse, hence the court was authorized to render judgment upon the answers to the special interrogatories when considered with the undisputed facts (64 O. S., 391).  