
    The Baltimore & Ohio Rd. Co. v. Lohrey et al.
    (Decided December 16, 1935.)
    
      Messrs. Waite, Schindel & Batyless, Mr.- Herbert Shaffer and Mr. Philip J. Schneider, for plaintiff in error.
    
      Mr. Henry E. Beebe, for defendants in error.
   Matthews, J.

This action originated in the Municipal Court of Cincinnati, in which a judgment was rendered for the defendant Baltimore & Ohio Railroad Company. Error was prosecuted from that judgment to the Court of Common Pleas of Hamilton county, which reversed the judgment and remanded the case to the Municipal Court for a new trial. The case is here on error to that judgment of reversal.

The parties will be referred to by their titles in the trial court. -

A collision took place between the plaintiff’s truck and the defendant’s train at the crossing of Colerain avenue by the defendant’s railroad tracks. There are three parallel railroad tracks of defendant at this point, extending in an eastwardly and westwardly direction and crossing Colerain avenue, a public street, running in a general northerly and southerly direction. Gates were maintained at this crossing and these gates were operated by a gateman. It was approximately 60 feet from the gates on one side of the tracks to the gates bn the other side. The distance between the outside rail of the most southerly track to the outside rail of the most northerly track was approximately 35 feet.

The motor truck operated by the plaintiff’s employee approached this crossing from the south in the daytime. The employee’s sight and hearing were good. He was very familiar with the crossing and as he approached he saw the gates for many blocks. They were up. Just after he had passed the south gates, he saw the north gates start to descend. At that time he was on the most southerly track and a distance of 25 feet from the nearest rail of the most northerly track. He was going between 20 and 25 miles per hour, and proceeded at that speed and had almost cleared the farthest rail of the most northerly track when the rear of his truck was struck by a train on that track going in a westerly direction.

The evidence is that the mechanical equipment of the truck was in good condition and that he could have -stopped it in a distance of 20 feet going at the speed at which he testified he was proceeding. He made no attempt either to stop the truck or increase its speed until he was on the north track, when he saw that if he continued at that speed he would not reach the north gate before it had come down, whereupon he increased the gas in an effort to get through before the north gate would stop him.

The driver of the truck testified that at no time did he look to the east until he was on the track upon which the train was that struck the truck. He testified that he could not see a train coming from the east, but it is. perfectly apparent that after he reached the south gate he could see down the track at least 500 feet. He also testified that he did not hear the train and only knew it was near him from the fact that he saw the north gates coming down.

The train was going between 20 and 25 miles per hour,

The action was for damage to the truck. At the close of all the evidence, the trial court instructed a verdict for the defendant, overruled the motion for a new trial, and entered judgment for the defendant.

This summary of the evidence and proceedings is sufficient to indicate that the driver of the truck failed completely to either look or listen for the approaching train at any time before he went upon the tracks, or at any time while he was crossing them, and, notwithstanding he was warned by the moving of the north gate that a train was in the vicinity, he did nothing to avoid a collision. At best, it can only be said that he relied completely on the fact that he got onto the track while the south gate was up. Was this such an assurance of safety as to exonerate the driver from all duty to use his faculties of seeing and hearing to discover the nearness and speed of the approaching train? If the open south gate lulled him into a feeling of security, should the closing north gate have warned him of danger?

The plaintiff places chief reliance upon the case of Railway Co. v. Schneider, 45 Ohio St., 678, 17 N. E., 321. We do not understand that case to hold that the traveler, approaching a crossing which he knows to be protected by gates, owes no duty to look and listen. In that case the traveler was killed and the action was by his administrator. Of course, there was a presumption that he exercised reasonable care. At the request of the defendant, the court charged the jury, as quoted by the court at page 689:

“That it is the duty of the deceased, in approaching the railroad crossing, to look for the railroad locomotive before attempting to cross; and if his failure contributed to the accident, he cannot recover, even though the defendant’s negligence also contributed to the injury.

“Even though the fireman and engineer were guilty of neglect contributing to the injury, yet that did not absolve tbe deceased from exercising tbe precaution of looking and listening for the approach of trains at such point on Freeman street, as would enable him to discover the approaching train or locomotive; or from approaching the crossing at such gait as would enable him to control his horses promptly.”

Using his faculties of seeing and hearing, a reasonable man might conclude that going on the track at a trot was his best chance of getting across before the safe condition, indicated by the open gate had changed to a condition of danger, and that was all the court in that case held on the subject of decedent’s conduct.

In the case at bar, the undisputed evidence, the plaintiff’s evidence, proves that the driver at no time exercised his faculties of seeing and hearing to discover whether a train was approaching, and it is clear that his failure directly contributed to the collision.

This is not a case of conflicting evidence or lack of evidence on the subject of the driver’s care. It is a case in which the driver admits that he exercised no care so far as approaching trains were concerned.

That the presence of gates at a railroad crossing does not exonerate the traveler from the exercise of his faculties of seeing and hearing for his own safety, we think is decided by Toledo Terminal Rd. Co. v. Hughes, 115 Ohio St., 562, 154 N. E., 916; C., D. & M. Electric Co. v. O’Day, Admx., 123 Ohio St., 638, 176 N. E., 569; Penn. Rd. Co. v. Moses, 125 Ohio St., 621, 184 N. E., 8.

For these reasons, the judgment of the Court of Common Pleas is reversed, and that of the Municipal Court of Cincinnati is affirmed.

Judgment reversed.

Boss, P. J., and Hamilton, J., concur.  