
    The Cincinnati Street Railway Co. v. Murray, Adm’rx; and The Baltimore and Ohio Southwestern Railroad Company.
    
      Street railway crossing railroad track — Provisions for safety of . street car passengers — Act of May 4, 1891 (88 Ohio Laws, 582) —Duty of street car employe — Negligence—Action for damages — Questions for court and jury — Evidence.
    1. The act of May 4, 1891, 88 O. L., 582, provides, in substance, that before a street car shall cross over a railroad track at grade, that the street ear shall stop not less than ten, nor more than fifty feet from, the' railroad track, and some employe of the street railway company shall go ahead of the car, and ascertain if the way is clear and free from danger for the passage of such car, and said car shall not proceed to cross until signaled so to do by such employe, or said way is clear for the passage over said track.
    In the absence of extraordinary circumstances, it is negligence to cause such street car to cross such railroad track, without stopping the car and going ahead as required by this statute.
    2. Whether or not such violation of said statute could be justified or excused by any circumstances whatever — quaere.
    
      3. In an action for damages, to make such negligence actionable, it must appear that injury was directly caused thereby.
    4. In a trial of an action for damages in such case it is proper for the court to instruct the jury that such failure to stop the car and go ahead, as required by said statute, constitutes negligence, and if the evidence tends to prove that such negligence was the direct cause of the injury, the case should be submitted to the jury. Whether the evidence does or does not so tend, is a question of law for the court.
    5. If there is only one employe operating such street car, it is his duty to stop the car and go ahead, and ascertain if the way is clear and free from danger, and if ho finds the way clear for the passage over the track, he may cross over with his car without signaling to anyone; but if there are two or more employes operating such car, such signaling is required before crossing.
    
      6. Such stopping, going ahead and signaling, are required at crossing's having gates and a watchman, the same as at other crossings.'
    (Decided December 17, 1895.)
    Error to the Circuit Court of Hamilton county.
    This action was brought in the superior court of Cincinnati, by Alta G. Murray, administratrix, on the estate of John L. Murray, deceased, against the Cincinnati Street Railway Company, and the Baltimore and Ohio Southwestern Railroad Company, under sections 6134 and 6135, Revised Statutes, seeking’ to recover the pecuniary injury resulting from his death by the alleged negligence of said two companies.
    The injury occurred on October 4, 1892, at a point where Harrison avenue, in the city of Cincinnati, crosses the double tracks of the railroad. The avenue is traveled and thronged with persons, vehicles and street cars, and crosses the railroad at grade. The railroad has a double track, and operates sidings and yard tracks in the immediate vicinity of the crossing, and seventy-five regular ■trains pass over this crossing every day, besides many switch trains, so that the crossing is regarded as dangerous.
    The railroad company had gates at the crossing and a watchman to lower and raise the same, so as to prevent accidents at the crossing. The street ear upon which Mr. Murray, who had paid his fare, was a passenger, approached the crossing from the east after dark in the evening. A train of ears was standing on the east side track of the railroad, near the north line of the avenue, and extending some distance north so as to obstruct the view of the main track from persons on the avenue east of the railroad. As the car approached the railroad crossing, the driver of the car checked his horses and brought his car nearly to a stop-something’ less than fifty feet from the railroad, and the conductor of the street car was about to step from the car and go forward to see whether it was safe for the street car to cross when the watchman in charge of the gates called to the employes in charge of the street ear to “comeahead” or ‘1 come on. ’ ’ The gates at this time were in an upright position, indicating’ that it was safe to cross the railroad tracks. And the watchman who-gave the sig’nal to “come ahead ” was at the same time sounding' the gong signal which was attached to the gates, and was so sounding for the purpose either of indicating to persons about to cross that they should cross promptly and that it was safe to do so, or to warn them that a train was coming’ and not to attempt to cross, the evidence on this point being conflicting. The driver and conductor of the street cal' listened and heard no sound of a. locomotive bell or whistle or other sounds of an approaching train, and their view from the main track was obstructed by the cars upon the side track. Thereupon the conductor resumed his place on the rear platform of his car, and the driver, in pursuance of the invitation and signal from the watchman to “come ahead,” started the street car and attempted to cross the railroad tracks. When the street car was partly across the railroad tracks, and it was too late to avoid a collision by stopping the street car, a “cut of cattle cars,” composed of two or three box cars, loaded with live stock, and being pushed by an engine from behind, came down the west track of the railroad, running at the rate of twenty or twenty-five miles an hour, and blowing no whistle, ringing no bell, and displa3dng no signal light, approached the crossing. The driver of the street car then made every effort to get his car across the tracks and avoid a collision, but the railway train struck the rear platform of the street car, after the whole of said car, except the rear platform, had passed over the crossing, and thereby Mr. Murray received injuries from which he shortly thereafter died.
    The case was tried to a jury,- and a verdict rendered against both defendants. A motion was made for a new ■ trial, which was overruled, and judgment entered on the verdict. On petition in error to the circuit court, which then had jurisdiction, the judgment was affirmed. Thereupon the case was brought here by petition in error on part of the street railway company, and by cross petition on part of the railroad company.
    
      J. IF. Wa/rnngton and E. TF Kittreclge, for plaintiff in error.
    There are two questions which arise upon the charges given and refused.
    The first is: Whether, the statute which provides especially for gates and watchman at dangerous crossings, Revised Statutes, sections 247a and 2476, and the provisions of section 2 of the act of May 4, 1891, 88 O. L., 582, which relates generally to crossing of a steam railroad by a street railroad, being in pari materia,, should be construed together. ■ If so, are not the provisions of the former, being special, relating to a class of crossings where gates and watchman are requisite, exclusive of the provisions of the latter? Do not the provisions of the act referred to, of 1891, refer only to crossings where no gates or watchman are required or maintained?
    
      The second question is: Whether, if the act of 1891 applies to a crossing where gates and a watchman are maintained, is the failure to comply with the requirement to stop and send forward the conductor of a street car, under all circumstances per se, negligence, or is the violation of the law under the circumstances a fact competent to be considered by the jury with all the other evidence in the case, in determining whether the defendant was guilty of negligence?
    The legislation, both of the state and the city, provided the special means of preventing collisions at this particular crossing by requiring the establishment of the gates and the constant presence of the watchman whose duty it was to control and regulate the sáfe transit of the traveling public across the steam railroad tracks.
    It is well settled that several acts in pari materia, and relating to the same subject, are to be taken and comprised together in construing them; because they are considered as having one object in view, and as acting- upon one system. It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious. 1 Ohio St., 20.
    There is also another familiar principle in the construction of statutes, expressed by this court in the case of Crawford v. McGregor, 44 Ohio St., 631.
    It should be observed that the plaintiff’s cause of action against the street railway company, as alleged in the petition, was not all for the violation of this statutory duty.
    In this respect the case was like that of the B. & O. R. R. Co. v. Whitacre, 35 Ohio St., 629.
    
      But what we contend, and all that we contend for, is that, under the issues as they were made in this ease, the failure of the street railway company to stop its car, and send an employe forward, and to do the other things required by the statute, was a fact which, in connection with all the other facts in the case, and disclosed by the evidence, should have been submitted to the jury for their determination of the question whether the street railway company exercised the degree of care which the law required' of it, or whether it was guilty of negligence which was proximate cause the of the injury. Blamares v. Railroad Co., L. R., 8 Exch., 283; Wakefield v. Railroad Co., 37 Vt., 330; Meek v. Pennsylvania Co., 38 Ohio St., 632; Kempfle v. K. Ice Co., 84 N. Y., 488; Horn v. Railroad Co., 54 Fed. Rep., 301; Railway Co. v. Elliott, 28 Ohio St., 340; Railroad Co. v. Whiteacre, 35 Ohio St., 627.
    Whether a failure to stop the street car is always and absolutely a wrongful act amounting to negligence depends upon the question whether any circumstances will excuse the failure to observe the requirements of the statute.
    In our judgment, there is no solid distinction between one’s obligation to perform a duty imposed upon him by statute and a duty imposed upon him by common law. Bower v. Peete, L. R. 1, Q. B. Div., 321.
    
      Bateman <& Harper and Ilcmnon, Colston, Goldsmith c& Iloadley, for defendant in error.
    The street railway act was passed subsequently to the act regulating the duty of the steam railway company, at crossing, and must be presumed to have had in view the provisions of that act. And inasmuch as it does not limit its operation, as to cases provided for by the steam railway act, the intent of the legislature must be assumed to be as expressed.- The steam railway act was passed April 15, 1889, 86 O. L., 367. The street railway act was passed March 4, 1891, 88 O. L., 581. If either may be said to operate to modify the provisions of the other, in the nature of amendment or repeal, such necessarily would be the case as to the street railway act, having- been passed subsequently to the steam railway act. If either was repealed or-amended by the operation of the other it must be the first act,-and that only to the extent to which it is inconsistent with the later. There is no inconsistency in the two acts. In the matter of the probate of Iiathawajr’s will, 4 Ohio St., 383; Woodbury v. Berry, 18 Ohio St., 456.
    The street and steam- railway- companies have their several and appropriate duties; the statute regulates both. As a common carrier the street car company has no right to rely upon the faithfulness or care of another company and its servants, over which it has no control and for which it can provide no regulation. It is sufficient that each should take the hazard of its own servants, and it would be unjust to subject one to the neglect or misconduct of the servants of the other, and the statutes were intended to hold each to its duty and responsibilities. Railway Company v. Schneider, 45 Ohio St., 678; Eaton v. Railroid Co., 129 Mass., 364; Hayes v. Railroad Co., 111 U. S., 235; Pepper v. Sidwell, Admr., 36 Ohio St., 454; Hammerly v. Kramer, 12 Ohio St., 252; Youngstown v. Moore, 30 Ohio St., 133; Fox v. Spring Lake Iron Co., 89 Mich., 387; Railway Co. v. Taylor, (Ky.) 17 S. W. Rep., 198; Paulson v. Ward, (N. Dar.) 58 N. W. Rep., 792; Bicknell v. Spier, 27 N. Y., 386; Ladoga 
      v. Linn, (Ind. App.,) 36 N. E. Rep., 159; Spengler v. Kaufman, 43 Mo. App., 5; Horn v. Railroad Co., 54 F. R., 301; Pennsylvania Co. v. Rethged, 32 Ohio St., 66; Salisbury v. Herschenroder, 106 Mass., 158; Billings v. Breinig, 45 Mich., 65; Correll. v. Co., 38 Iowa, 120; Lloyd v. Perry, 32 Iowa, 146; Dodge v. Railroad Co., 34 Iowa, 276; Railroad Co., v. Stebbing, 62 Md., 504; Keim v. Union Railway & Transit Company, 90 Mo., 314; Faith v. Railway Co., 105 Mo., 437; Weber v. Railway Co., 100 Mo., 194; Seimers v. Ison, 54 Cal., 418; Shearman. & Redfield on Negligence, section 13^/ Central Railroad and Banking Company v. Smith, 78 Ga., 694; Railroad Co. v. Boggs, 101 Ind., 522; Hazard Powder Company v. Volger, 58 Fed. Rep., 152; Railroad Co. v. Voelker, 129 Ill., 540; Piper v. Railroad Co., 77 Wis., 247; Bott v. Pratt, 33 Minn., 323; Kelly v. Railroad Co., 75 Mo., 138.
    We insist, therefore, that both upon reason and •authority, when the law commands acts to be done or omitted by a railway company, by way of conserving the public safety, a duty is thereby imposed upon it in behalf of each individual composing the public, and a breach of that duty constitutes negligence in law, and, if injury shall have resulted therefrom, gives to the person injured the right of action for the amount of such injury against the delinquent company; and that the company has no dispensing power by which it can substitute other precautions in place of those prescribed by law.
   Burket, J.

The errors assigned and relied upon, arise upon the charge of the court to the jury as given, and refusal to charge as requested. The general charge as to the liability of the street railway company in so far as the points made in argument are concerned, is embraced in the following :

“The Cincinnati Street Railway Company at the time and place mentioned, through its agents or servants, was bound to exercise the highest degree of care which prudent men are accustomed to employ under similar circumstances, and to the end that the passenger might be safely carried to the end of his journey, however, without being an insurer of the safety of the passenger, for that the company did not undertake to do. Nor does it under the law stand as an insurer of the safety of the passenger.

“If the jury find from the evidence that the defendant, The Street Railway Company, is a common carrier of passengers, and that on the fourth day of October, 1892, the plaintiff’s intestate was a passenger on the car of the defendant, and having paid his fare, it was the duty of the said defendant to carry him safely to the point of his destination without injury, and when it is shown that the defendant failed to carry the plaintiff’s intestate safely to the place of his destination, the failure puts the defendant prima facie or affirmatively in the wrong’, and the burden of proof devolves upon the defendant to show that the injury was the result of another independent and intervening cause, and that the injury might not have been prevented by the exercise of that high degree of care to which we have alluded, and which prudent men are accustomed to employ under similar circumstances.

£ £ The laws of Ohio make it the duty of a street railway company to cause their cars to come to a full stop, not nearer than ten nor further than fifty feet from the tracks of a steam railway at a ■ crossing, before proceeding to cross ; to cause some person in its employ to go ahead of the car and ascertain if the way-is clear and free from danger for the passage of such street car, and not to proceed to cross until such action has been taken by such persons so employed and the way is clear for their passage over the said tracks. If you find that the death of the plaintiff’s intestate resulted from the omission of such duty, or could have been avoided by the observation of said duty, you may consider it as the act of negligence on the part of the railway company, because of the invitation of the steam railway to come across, they should look and see that the way was clear, that does not relieve the street railway company from its duty to its passengers as I have described.”

The plaintiff in error excepted to the last of the above propositions of the general charge.

The court also charged the jury that both railroad and street railway might be found guilty of the wrongful act causing the injury, if both were concurrent in point of time and fact, and the wrongful act of each was the direct and proximate cause of the injury.

At request of plaintiff below, the court gave the following special charges, to which plaintiff in error excepted:

“1. The statute of Ohio made it the duty of The Cincinnati Street Railway Company to cause its car to come to a full stop not nearer than ten feet nor further than fifty feet from the crossing, and before proceeding to cross said steam railway tracks to cause some person in its employ to go ahead of said car and ascertain if the way was clear and free from danger for the passage of said street car, and not to proceed to cross until signaled so to do, by such person so employed, as aforesaid, or said way was clear for their passage over said tracks ; and I charge you that the omission of such duty is negligence on the part of said defendant, which will render it liable in damages, if you find that the death of the decedent resulted from such omission, or could have been avoided by the observan.ee of this duty.

“2. So far as the street railway company is concerned, the fact, if you shall find it so to be, that the gateman neglected to let down the gates, or invited the street car driver to come ahead, does not excuse the company from its failure to send a person in its employ forward to examine the track, and to stop until such person shall have notified them to proceed.”

The street railway company then requested. the following five special charges, which the court refused to give, and exceptions were duly taken.

“1. If you find that the defendant steam railway company, in obedience to an ordinance of Cincinnati, had been, and at the time of the accident was maintaining gates with a watchman at the crossing-in question, then I charge you that employes of the defendant street railway company were not required at the same time and crossing first to stop the street car and then go forward to look for the approach of steam trains, but that such employes had the right to rely on the watchman with the gates of the steam railway company.

“2. If you find that as the car of the street railway company approached the steam tracks in question, the gateman of the defendant steam railway' company kept his gates open and by the use of his gong and oral invitation indicated to the driver of the street ear that it was safe to, and he should drive across the tracks, and that the street railway employes while in the exercise of their senses of sight and hearing did not know of such an approach of a train as to make it unsafe to cross the tracks, then I charge you that the street railway employes were excused from stopping their car or going forward in advance of the car to examine for approaching trains, and that they were justified in accepting such invitation of the gateman and attempting to cross the tracks.

“3. If the jury find from the evidence that the gates established at the steam railroad crossing were open at the time the street car approached the crossing; the open gates were an affirmative and explicit declaration 'that it was safe to cross,- and that no train or locomotive was. approaching’ the crossing near enough to make it unsafe for the employes of the street railway company to act upon the invitation to cross; and if you find that the employes of the street railway company in the' use of their senses of sight and hearing did not know of the approach of a train and were not otherwise warned or advised of its near approach so as to make it unsafe to cross, they were not guilty of negligence in acting upon the invitation extended to them by the open gates..

“4. If you find that Harrison avenue and the steam railroad track at the point where this collision occurred was a crossing much used both by the steam railroad and the street railroad and the traveling public generally, and the number of trains using the steam road and others using public conveyances and traveling along the street, made it necessary and highly important for safety in crossing, that persons driving wagons and public conveyances should cross over promptly and quickly, so that the passage of steam railroad trains and of persons desiring to use the street crossing should not be unduly delayed and hindered, and in order to avoid this you should find that it was necessary for the defendant’s street car to cross over promptly and speedily, then I charge you that unless the employes of the defendant street railway company were made aware or by the exercise of their senses of sight and hearing could have ascertained that a train was approaching before they went upon the crossing, so near as to make it unsafe to cross, you may find that they were not negligent in acting upon the invitation presented by the open gates, or such other inivtation, if you find any was given, by the employe of the steam railroad in charge of the gate.

“5. If the jury find that the defendant street railway company’s car was slowed up as it approached the tracks of the defendant B. & O. S. W. Railway Co., on Harrison avenue, and that thereupon and before the street ear reached the side track of the steam railroad, the gateman of the ‘steam railroad company personally called to the employes in charge of the street ear to 4 4come ahead,” or called to them in any other words to that effect, and in response to which the street car went ahead, then I charge you that there can be no recovery against the street railway company.”

Section two of the act of May 4, 1891, 88 O. L., provides as follows:

“Whenever the tracks of any street railroads in this state cross the tracks of any steam railway at grade, the street railway company operating said line of cars shall cause their street cars to come to .a full stop not nearer than ten feet nor further than fifty feet from the crossing, and before proceeding to cross said steam railway tracks, shall cause some person in their employ to go ahead of said car or cars, and ascertain if the way is clear and free from danger for the passage of said street cars, and said street railroad cars shall not proceed to cross until signaled so to do by such person so employed as aforesaid, or said way is clear for their passage over said tracks. ’ ’

The penalty for a violation of this section is one hundred dollars, together with liability in damages to the party injured, on part of both the street railway company and its employe.

On part of the street railway, it is contended that the above statute should be read in pari mcvteria with that section of the railroad statute requiring gates and a watchman to be maintained at dangerous crossings, and that when the gates are open and such watchman is at his post and signals the street car to come on and cross, that the employes of the street railway are thereby relieved and excused from stopping the car and g'oing forward to ascertain whether the crossing* is clear and free from danger.

We do not agree with this view. The watchman is placed at his post to prevent accidents and injuries at the crossing*, and he and the railroad company are chargeable only with ordinary care, while the street railway company is a carrier of passengers, and as such is chargeable with a much higher degree of care.

The street railway statute is for the protection of the lives of its passengers, and in addition is highly penal in its provisions, and by its terms makes no exception of crossings where there are gates and a watchman.

It is therefore clear that the car must stop and the employe go forward, whether there are gates and a watchman or not.

It is also contended on part of the street railway company, that the court erred in its general charge, and in the special charge, in which the court called the attention of the jury to the above statute and the duty thereby imposed of stopping, the car and going forward to see that the crossing-is clear, and then added: “If you find that the death of the plaintiff’s intestate resulted from the omission of such duty, or could have been avoided by the observation of said duty, you may consider it as the act of neg-ligenee on the part of the railway company, because of the invitation of the steam railway to come across they should look and see that the way was clear, and does not relieve the street railway company from its duty to its passeng-ers as I have described. ’ ’

The case was argued, both on brief and orally, as if the court had charged that the mere failure to stop the car. and failure to go forward to see-that the crossing- ^ was clear, constituted, per se, such actionable neglig-enee as to warrant a recovery; and it is strongly urged that the question, as to whether such failure to stop the car and go forward, was or was not negligence on part of the street railway company, should have been submitted to the jury. Four of the five requests to charge are also in line with this theory. But an examination of the above part of the general charge shows, that the court only decided that. in this case it was negligence to fail to stop the car and go forward, and then as to whether or not the injury was caused by such negligence was submitted to the jury. The language of the court is, “If you find that death resulted from the omission of such duty or could have been avoided by the observation of such duty.”

This clearly leaves to the jury the question as to whether or not the injury was caused by the negligence of not stopping the car, and not going forward as required by statute.

True, the effect of the charge was that the failure to stop the car and go forward was negligence. The charge in that regard was strictly correct. The statute requires that the car stop and that an employe go forward and ascertain if the way is clear, and a failure to obey the statute in this regard is negligence, but in an action for damages, and not for penalty, it is not actionable negligence, because to make such negligence actionable, some injury must have been directly caused thereby. In such case if there is nothing which in law tends to justify or excuse such negligence, it is not only the right, but the duty of the trial judge, to say to the jury that such omission is negligence, and then, if the evidence tends to prove that such genligeh.ce was the direct or proximate cause of the injury, to submit that question to the jury; if the evidence does not so tend, a verdict should be directed for the defendant. Whether or not the evidence so tend s, is a question of law for the court, and not of fact for the jury.

It may well be doubted, whether under any circumstances, the street railway company would be justified or excused for violating the statute, but that question is not necessarily involved in this case, as the facts shown at the trial did not even tend toward an excuse or justification.

The trial court in this case said to the jury, that if they found that death resulted from the omission of such duty, or could have been avoided by the observation of such duty, that the street railway company would be liable. The true test in such case is, that the injury resulted directly from the negligence complained of, or was directly or proximately caused thereby; but in the absence of a request to make the charg-e more specific in that regard, we cannot say that the street railway company was prejudiced by the charge as given.

It is urged that this failure of duty on part of the street railway company, was not averred in the petition, and that therefore it cannot be relied upon as a ground of recovery. Railroad Company v. Whitacre, 35 Ohio St., 629. The statute prescribes the care to be taken by the street railway company at a crossing-, and the terms of the statute need not be pleaded, but in this ease they were pleaded, and were on motion vepy properly stricken out. The petition avers that: ‘ ‘ The said street railway company without exercising any care on its part, negligently and carelessly caused said car, on which said decedent was riding, to be drawn across said steam railroad tracks.” If it drove on without exercising any care, it certainly did not stop its car nor go forward, because that would have been exercising some care, in fact such care as the statute requires. The averment of no care is broad and sweeping, and perhaps indefinite and uncertain, but all this might have been cured by motion.

It is also urged that it is not always necessary to stop the street ear and go forward when a railroad crossing- is reached, and that the last sentence of the section shows that if the track is clear, the car may proceed without stopping and without any one going- forward. The section of the statute in question, after providing for the stopping of the street car and an employe going forward to ascertain that the way is clear and free from danger, provides as follows: “And said street railroad cars shall not proceed to cross until signaled so to do by such person so employed .as aforesaid, or said way is clear for their passage over said tracks.”

In many cities there is but one employe on a street car, and while he is bound to stop his car and go forward and ascertain if the way is clear and free from danger, he cannot well signal to himself to proceed, and in such case he shall not proceed to cross with his car, “until said way is clear for their passage over said tracks.” This last sentence is clearly applicable only to eases where, after one goes forward, there is no one left in charge of the car to whom a signal can be given. But this does not excuse the employe from stopping his car, and going forward and ascertaining whether the way is clear and free from danger.

The railroad company in its brief, asks a reversal of the judgment against it only in case the judgment against the street railway company should be reversed, but in oral argument it is urged that the judgment against the railroad company should be reversed, and that against the street railway company affirmed. We find no error in the record prejudicial to either company, and therefore the judgment against both companies is affirmed.

Judgment affirmed.  