
    No. 782
    DAVIS, Dir. Gen. Rys., v. BRECKLER, Exrx.
    Ohio Appeals, 1st Dist., Hamilton County
    Decided July 10, 1922
    225. CHARGE TO JURY — 1. Special requests that rate of speed is not evidence of negligence, held properly refused.
    2. Interrogatories: must go to ultimate and not probative facts.
    991. RAILROADS — 1. Public knowledge that trains operate in populous district ati 75 mile rate does not relieve from liability for such speed rate.
    2. Duty of one approaching railroad crossing to make stopping, looking and listening effective.
    Attorneys — Harmon, Colston, Goldsmith & Hoadly and H. N. Quigley, for Davis; Freiberg & Geoghegan and John M. Renner and Lawrence Williamson, for Breckler.
   CUSHING, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Arthur Breckler, a chemist, While driving an automobile in Cincinnati, was struck by a C. C. C. & St. L. Ry. train and killed. The negligence charged against the railroad was that the train was being operated at a high and excessive rate of speed; that no warning was given by the engineer; that there were no gates or Watchman at the crossing; and that the signal bell at this point did not ring. Evidence tending to show that the train was being operated at a high rate of speed at the time of the accident. The defendant requested the court to submit the following interrogatories, which was refused. (1) Could the decedent, had he looked in the direction from which the train was approaching, or had he listened, immediately before driving on the crossing, have seen or heard the train in time to have avoided being struck by it ? (2) Could the decedent, after he reached the street . . . and before driving upon the railroad track, have seen or heard the approaching train had he looked or listened? (3) If you answer question 2 in the affirmative, then state whether the approaching train was so near the crossing as to make it apparently dangerous for decedent to attempt to cross at that time.

A verdict was rendered for the plaintiff in the sum of $15,000. Error Was prosecuted. In affirming the judgment, the Court of Appeals held:

1. A railway company is not authorized to so operate its trains through a populous district at a high rate of speed, up to 75 mjles an hour, for such a length of timei that the public would' be bound to take notice that trains would be operated at that rate of speed, and accordingly! it is not error for the court to refusei to charge the jury to the effect that they should determine that such a rate of speed at that particular location was not evidence of negligence."

2. Persons are bound to use ordinary care for their own safety, and it is the duty of one approaching and crossing a railroad track to look and listen for approaching trains at such time and place as will mlake his' looking and listening effective.

3. It is not error for the trial court to refuse to submit to the jury special interrogatories which are only of probative character, the answers to Which will not establish ultimate and determinative facts.  