
    Hoyer, Admx., v. The Lake Shore Electric Railway Co.
    
      Negligence — Directed verdict — Facts conclusive upon review — Questions for jury — Automobile upon interurban crossing —Duty to stop car — Care to prevent collision — Evidence of negligence — Failure to stop car — Question of fact — Game of fatal injury — Collision with interurban or with trolley pole.
    
    1. When a court directs a verdict at the close of plaintiff’s testimony, in an action for personal injury, the testimony and admissions shown by the record must be taken as true; and where the record presents a state of facts from which different minds may reasonably arrive at different conclusions on the ultimate fact as to whether or not an automobile was standing on or across the track of an interurban railway company when its car was. approaching, 300 feet distant, in the daytime, driven at a high but lawful rate of speed, with no obstruction of view, there is presented a question for the jury.
    2. Under such circumstances, it is the duty of the agents of the railway company in charge of the car so traveling, if it be the fact that the automobile is standing on or across the track, to use such means at their disposal as an ordinarily prudent person in like circumstances would have used in order to stop the car and prevent collision.
    3. And under such circumstances, where it appears that a car could ordinarily be stopped within a distance of 500 feet, and that on this occasion the car struck the automobile and thereafter .proceeded a distance of from 700 to 1,500 feet before coming to a stop, there is presented some evidence of negligence, and it is error for the court to direct a verdict.
    4. In a record, where the petition avers and the evidence tends to prove a failure and neglect on the part of the defendant company to stop its electric car within a reasonable distance after striking an automobile in which plaintiff’s ■ decedent was riding, that the automobile was carried a long distance on the fender of the electric car, that the automobile then struck a trolley pole and decedent was thrown in the ditch, and where the evidence also tends to show that the injuries received resulted in death, the question whether or not the fatal injury was occasioned under such charge of negligence, or' when the car first struck the automobile, is one for the jury under all the circumstances.
    (No. 17001
    Decided March 28, 1922.)
    Error to the Court of Appeals of Lucas county.
    The action is one for damages for the death, on the 17th day of October, 1917, of the plaintiff’s decedent.
    The deceased on that date was driving his Ford automobile on the Toledo and Fremont road, about two miles west of the city of Fremont, traveling eastward in the conduct of his business or occupation, which business was canvassing for the sale of some article manufactured by him.
    The tracks of the defendant’s railway run parallel and along the south side of the highway. Shortly after noon on that date, the deceased arrived in front of the Wheeler farmhouse, and for some reason started to turn into the driveway leading to the buildings on the farm. To do this it was necessary to cross the railway tracks on a private or farm crossing prepared for that purpose, and •which was the natural means of ingress and egress to that property.
    In crossing the tracks, for some unaccountable reason, the automobile stopped on the track, and while in that position was struck by a freight car of the defendant company, which was traveling east on the track.
    When the collision took place the automobile was picked up on the front fender of the electric car, and in this position carried a considerable distance down the track, and while being so carried it was jolted to the south until some part of it struck a trolley pole of the defendant company, and after striking one pole, which was completely cut in two, and later another pole, and possibly a third, the automobile was further jolted and by contact with the poles pulled and thrown off the fender. The electric car was brought to a halt some 100 to 300 feet beyond the point where the automobile was thrown from the fender, and from 700 to 1,500 feet beyond the point where the electric car first struck the automobile.
    The deceased was in the automobile when it was struck, and was carried with the automobile on to the fender, and remained thereon until about the time or shortly prior to the time that the automobile was finally thrown off the fender, when he was thrown or dropped into the ditch along the tracks.
    The petition charges negligence on several grounds, to-wit: in failing, neglecting, and refusing to stop the electric car within a proper distance after striking the automobile; in dragging and carrying the automobile a distance of some 1,500 feet; in permitting- the automobile with the decedent in it to be carried along the tracks and to be thrown upon and against the electric light or trolley poles; in neglecting to give any signal bell or whistle; in approaching the crossing at a high and negligent rate of speed; and in failing to stop the car and avoid the collision after the agents of the company in charge of the car saw the perilous position of the decedent.
    The decedent received injuries from which he died two days later.
    The answer admits that the decedent while crossing the railway tracks was struck by the car with force and violence, which caused bodily injuries and damage to the automobile, and that the decedent died two days later, but denies negligence on the company’s part.
    By way of second defense it pleads contributory negligence on the part of the deceased, alleging in substance that there was nothing to obstruct the view, and that the decedent should have seen the approaching car 300 feet away.
    The common pleas court at the close of the plaintiff’s testimony, upon the motion of the defendant, directed a verdict in favor of the defendant, upon which judgment was entered, the same being affirmed by the court of appeals.
    
      Messrs. Graves & Stahl and Messrs. Young & Young, for plaintiff in error.
    
      Messrs. Tyler, Northup & McMahon, for defendant in error.
   Hough, J.

The judgment being based upon a verdict directed by the court of common pleas after the introduction of plaintiff’s testimony, the action taken by the court is analogous to that upon demurrer, and in considering the case this court will accept as true the testimony introduced and shown in the record, as well as the admissions in the pleadings and the admissions made in the statements of counsel.

The answer admits the collision and that the deceased was injured thereby and died two days later, and testimony appears tending to show that the deceased died of the injuries received from the collision. The answer denies all negligence on the part of the defendant, and in the second defense in substance pleads contributory negligence, and it may be said that contributory negligence is not or will not become a defense in the absence of a showing of negligence on the part of the defendant. In other words, contributory negligence presupposes negligence on the part of the other party.

It is clear from the record that the deceased had a right to cross the tracks at that point; while a private crossing, it was a crossing that was intended to be used in gaining access to the Wheeler farm. The defendant claims that there was nothing to obstruct the view, and no reason why decedent should not have seen the ear when it was 300 feet away. There is no testimony to gainsay that statement, and that being true, the converse must also be true, that the agents in charge of the car could and should have seen the deceased on the track when the car was 300 feet away.

There is no testimony tending to show that the car was going at an illegal rate of speed in the open country; neither does it appear that the whistle, bell or gong was not sounded; nor does it appear for what reason the automobile stopped on the track, as it is clear that the deceased, had he looked, could have seen the approaching car 300 feet away, and that the motorman in charge of the car, had he looked, could have seen the automobile standing across the track from a distance 300 feet away.

After the collision the electric car continued down the track a distance of 700 feet, and perhaps considerably farther, before it was stopped, and we find in the record the statement of counsel for the defendant that a car such as this under like conditions could ordinarily have been stopped within a distance of 450 or 500 feet. Under the conditions that existed it is our opinion, under the doctrine heretofore announced by this court, that it was the duty of the motorman to have used all means at hand to have stopped his car when he discovered the automobile across the track, which he could have seen and should have seen when his car was 300 feet away. It being his duty to set his brakes, emergency and otherwise, the natural consequence would be that his car would at least slacken its speed materially before it struck the automobile. We refer to the pronouncement of the court in the case of Railroad Co. v. Kassen, 49 Ohio St., 230.

Assuming, then, that the speed of the car should have been slackened or retarded before the collision actually took place, we are at a loss to comprehend, if the motorman was doing his full duty to prevent the collision, how it was that he was not able to bring his car to a standstill for a distance of more than 700 feet after the collision took place, in the face of the statement of defendant’s counsel that the car could ordinarily have been stopped within 450 or 500 feet. This in onr opinion raised a question for the jury to determine upon consideration óf ail the facts.

It is claimed by the defendant that the deceased met with his injuries when the collision took place, and the contention of the plaintiff is, as we understand it, that the real injuries sustained by the deceased, and from which he died, occurred later, either when the automobile, which he occupied, struck one of the trolley poles, or when he was finally thrown clear of the wreckage and into the ditch along the track. We are unable from the record to answer this question. It is a question entering into the realm of probability, depending on all the circumstances, all the facts, and is essentially a question for the jury, to be submitted to them after all the illumination possible by way of testimony, argument of counsel, and instructions on the part of the court; and while it is not the province of the jury to speculate upon the happening or guess upon the existence of controverted events it is within their province and it often happens that juries are called upon to determine facts and issues when the proof is entirely circumstantial. If the circumstances are probable, logical, and reasonable, a basis is formed upon which the jury may properly be consigned the responsibility of settling and determining the issue, and this court has very recently made a pronouncement closely related to the present question under discussion in proposition three of the syllabus in the case of Vignola v. New York Central Rd. Co., 102 Ohio St., 154, where it is held:

“In order that an issue should be required to be submitted to the jury, it is not essential that there be sueb a conflict in the testimony of different witnesses as makes it necessary for the jury to determine disputes or questions of veracity. That is not the only province of the jury. Where there is no conflict in the testimony, but nevertheless the unconflicting testimony discloses a variety of circumstances from which different minds may reasonably arrive at different conclusions as to the ultimate facts shown by the evidence, it is the duty of the jury to determine such ultimate fact. When the decisive ultimate fact is undisputed, there is presented simply a question of law.”

We believe the record before us presents a set of circumstances, the determination of which presents proper matters for the jury’s consideration, and that the court erred in disposing of the same as a matter of law.

The judgment of the court of appeals will be reversed, and the cause remanded to the court of common pleas for a new trial.

Judgment reversed.

Johnson, Wanamaker, Robinson, Jones and Matthias, JJ., concur.  