
    No. 283
    ENRIGHT Admx. v. B. & O. R. CO.
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 671.
    Decided Feb. 3, 1926
    206. CARE — Higher degree of duty owed by pedestrians as to observance of dangers at railroad crossing than the driver of vehicles.
    Attorneys — McConnaughey & Shea for En-right; Marshall & Harlan for Company; all of Dayton.
   BY THE COURT.

Bridget Enright, administratrix of the estate of Michael Enright, deceased, brought suit in the Montgomery Common Pleas for the wrongful death of said Michael Enright. Decedent was struck by an engine of the Company at an intersection at a crossing.

The jury in the lower court returned a general verdict for $5,000 in favor of the administratrix and also a special verdict in answer to certain interrogatories upon which judgment was rendered in favor of the Company.

Error was prosecuted and the Court of Appeals held:

The interrogatories show that at five, ten and fifteen feet respectively, the decedent, who was a pedestrian, could have seen the approaching engine if he had looked. It is contended that none of the findings contain direct finding upon the issue of contributory negligence but only evidential facts which might be explained or rebutted,

1. The only question is whether the special verdict is irreconcilable to the general verdict.

2. The interrogatory of finding No. 7, to which the answer was “yes”, is as follows: “Was the engine, right upon Michael Enright and in plain sight of him just before and when he stepped upon the eastbound train?”

3. Pedestrians are held to a higher degree of duty in the observance of dangers at a steam-railroad crossing than the driver of vehicles for very obvious reasons.

4. It is undisputed that the crossing was an open-view crossing.

5. So that finding No. 7 is conclusive of contributory negligence.

6. Judgment of the lower court upon the special findings, approved.

Judgment affirmed.  