
    The Pennsylvania Rd. Co. v. Rusynik.
    
      Negligence—Railroad grade crossings—Traveler to look and listen in effective manner for approaching trains—Duty to defer crossing until clear view afforded—Traveler may recover where railroad fails to give warning signals, when —Failure to look constitutes contributory negligence preventing recovery, although signals not given.
    
    1. When a traveler upon a public highway approaches a steam railway which intersects at grade the highway, with one or more tracks, with an intention of crossing over, it is the duty of such traveler, before going upon the railway, to look both ways and listen for the approach of trains; and such looking and listening must be at such time and place and in such manner as will be effective to accomplish the ends designed thereby. When the view of such traveler in either direction is temporarily obscured by a passing train, smoke, steam or dust arising therefrom, it is the duty of such traveler to defer his' crossing and remain in a place of safety until such obstruction has passed away and a clear view is afforded.
    2. It is the duty of the railway company, when its trains are . approaching a highway grade crossing, to give all the signals of such approach required by law, in order that travelers upon the highway may be thereby informed of the approach of trains, and a failure to give such signals is negligence upon the part of the company which will give rise to a cause of action in favor of a traveler upon the highway for injuries sustained by a collision with such train proximately caused by such negligence when the traveler is not himself guilty of negligence that directly and proximately contributed thereto.
    3. A person driving a motor car upon a public highway and about to go upon a double track railroad crossing who stops and looks in one direction where his' view is obscured by a passing freight train and the smoke therefrom, and looking in the opposite direction sees nothing, relying only for his safety upon not hearing an approaching train coming from an opposite direction to that of the passing freight train, or any signal of such approaching train, and taking no further precaution, proceeds at his own risk. If his failure to look in the direction from which a train is approaching, at a time and place when such looking would have been effective, results in an injury to himself when the same might have been avoided had he so looked, such conduct constitutes contributory negligence as a matter of law that will prevent a recovery, even though the evidence tends to show there was a failure to give the signals required by law of such approaching train.
    (No. 20460
    Decided December 21, 1927.)
    Error to the Court of Appeals of Summit county.
    This is a proceeding in error to reverse the Court of Appeals of Summit county. The original action was one for damages sustained by reason of' injuries received at a grade crossing by Rusynik, who was riding in a truck that was struck by a passenger train. The negligence claimed on the part of the railroad company was its failure to give signals of the approach of its train to the crossing, and the high and dangerous rate of speed at -which the train was traveling at the time and place in question.
    The answer of the defendant was, first, a general denial, and, second, an averment of contributory negligence upon the part of the plaintiff; to which answer a reply was filed by Rusynik, denying any negligence upon his part contributing to his injury.
    Upon the issues thus tendered the parties went to trial, which resulted in a verdict for plaintiff, which was set aside by the trial judge upon the weight of the evidence, and a new trial granted.
    Upon the second trial, the record discloses substantially the following facts: The accident occurred at a point where two parallel main tracks of the defendant company, running between Pittsburgh and Cleveland, cross the public highway. The space between the two tracks is 8.3 feet, or 13 feet center to center, the rails of the respective tracks being 4 feet 8 inches apart. The highway extends north and south, and the railroad tracks extend in a general easterly and westerly direction. The highway is paved and the crossing planked. Trains from Cleveland to Pittsburgh run on the southerly track, and from Pittsburgh to Cleveland on the northerly track. The crossing was protected by a wigwag signal and gong located about 15 feet south of the southerly track, and to the east of the highway. This signal consisted of long arms on which were printed the words, “Look and Listen.” When a train was in the vicinity, these arms would swing and the gong sound as a warning to travelers on the highway. The tracks are straight for more than a mile to the east, and there is nothing to obstruct the view of a traveler on the highway approaching the crossing from the south.
    Plaintiff was very familiar with this crossing; had been over it both ways more than 100 times; knew that east-bound trains ran on the south track, and west-bound trains on the north track. He had often seen trains on both tracks, and knew the speed at which they ran. Plaintiff was on his way from Akron to Cleveland, driving a truck, and approached this crossing from the south. He saw the wigwag signal operating, heard the gong sounding, saw the freight train approaching the crossing going east toward Pittsburgh on the south track, stopped his truck with the front end 5 or 6 feet from the southerly track, waited there until the freight train cleared the crossing and had receded 4 or 5 box car lengths from the crossing, and then he started over. He looked east toward Pittsburgh before he started, and did not look east again for trains until the collision.
    When he started across the tracks, the receding freight train cut.off his view from the west-bound track so he could see east along the west-bound track only 175 or 200 feet, and this was the only time he looked east. He drove his truck across the tracks at the rate of from 1 to 1% miles per hour. Prom the place he looked before starting to the point of collision the distance is between 20 and 25 feet. The freight train made so much noise that plaintiff, while waiting with the front of his truck 5 or 6 feet from the freight train, could not hear the gong sounding only a few feet from him.
    At the close of the plaintiff’s case, the railroad company moved the court to arrest the testimony from the jury and direct a verdict in favor of the railroad company. This motion was sustained by the trial court and a verdict returned in favor of the railroad company. Error was prosecuted to the Court of Appeals by Rusynik, which court reversed the judgment of the court of common pleas, finding that there was error to the prejudice of Rusynik in the following respects, to wit: First, in finding that the plaintiff was guilty of contributory negligence, as a matter of law; and, second, in directing a verdict for the defendant at the conclusion of the plaintiff’s evidence.
    Error is now prosecuted to this court to reverse the judgment of the Court of Appeals.
    
      Messrs. Waters, Andress, Wise <$> Mascón, for plaintiff in error.
    
      Messrs. May & May, for defendant in error.
   Day, J.

Was the trial court justified in directing a verdict in favor of the railroad company at the close of the plaintiff’s case, upon the ground that plaintiff, Rusynik, was guilty of contributory negligence as a matter of law?

It was the duty of the trial court to consider all the evidence submitted, and any reasonable inference therefrom, in the most favorable light to the plaintiff, Rusynik. Pope, Admx., v. Mudge, 108 Ohio St., 192, 140 N. E., 501; McMurtrie v. Wheeling Traction Co., 107 Ohio St., 107, 140 N. E., 636. With that rule in mind, it must be conceded that the evidence tended to show that no signals were given by the engineer of the approaching train as it neared the grade crossing in question. This evidence being conceded, did the record show negligence upon the part of plaintiff contributing to his injury, even though the railroad company was negligent?

The testimony of the plaintiff himself shows that he had been standing a short distance from the double tracks of the railroad, awaiting the passing of an east-bound freight train; that after the freight train had passed, Busynik started his truck, to go over the crossing. He says, in his direct examination, “I looked in front, ahead, and watched the road.” In cross-examination, he says that after passing the first track he looked “down to Cleveland,” and in response to a question as to whether he looked toward Pittsburgh, the direction from which the passenger train came, he answered, “I got no time, I was looking ahead, I watch the road ahead,” and further, in response to the question as to whether, after he got between the tracks and just before he was on the north or west-bound track, he looked down toward Pittsburgh, he answered, “I looked down to Cleveland, I looked in front of me. I was watching the road.” “Then you didn’t look down toward Pittsburgh again?” To which he answered, “No.”

The record further discloses that Busynik was familiar with the crossing in question, having crossed and recrossed the same “about a hundred times or better;” that he knew it was a frequent occurrence to have trains of all kinds pass and repass over said crossing; that his eyesight was good.

The evidence tends to show that just before starting across the northern or west-bound track on which the accident occurred, the truck which Rusynik was driving had been standing between the south or east-bound track and the wigwag signal, where the gong, which was sounding, was situated. . Rusynik testified he did not hear the gong, although he did hear the horns of several automobiles sounding just before he started to cross the track. The record indicates that there had ‘been a gathering of several automobiles on both sides of the track, waiting for the crossing to clear.

Stated briefly, the plaintiff testified he heard no signals of the approaching passenger train coming from Pittsburgh toward Cleveland, and did not hear the sounding of the crossing gong, on account of the noise of the passing freight train; that after the last car of the freight train had gone about 175 to 200 feet he looked eastwardly as far as he could see past the receding freight train, a distance of “about four or five box cars by;” that the railroad track to the east was straight for nearly a mile; and that there was some smoke from the passing freight train. Relying upon his sense of hearing alone, in so far as any danger approaching from the east was concerned, he deliberately drove upon the northerly or west-bound track without looking, at a time and place when such looking would have been effective, in the direction from which the train that caused the injury was approaching. Had he so looked, he must surely have seen the approaching train in time to have avoided the injury, for he was moving at a rate of 1 to 1% miles per hour. A wait of a moment or two would have given time for the freight train to have passed far enough away for the smoke to have cleared, thus affording him a clear and unobstructed view of the approaching passenger train.

When a passing train is upon the track nearest to the traveler, and one or more parallel tracks are beyond this track, the traveler on the highway must give heed to the fact that a fast moving train may be approaching the crossing in the opposite direction from that in which the train on the first track is moving, which may be entirely concealed from the view of the traveler by the moving train then occupying the crossing; and it is not the exercise of ordinary care for his own safety on the part of the traveler to await only until the passing train shall have cleared the crossing and then to go forward without waiting to ascertain whether another train is approaching the crossing on a track beyond that of the passing train. Time must be given to permit the passing train to get so far beyond the crossing that the traveler, while halted in a place of safety, may be afforded a clear view of the track or tracks in both directions, that he may thereby know whether a moving train is in close proximity to the crossing thereby endangering any attempt he may make to cross the tracks in front of such approaching train. The omission of such caution on the part of the traveler will constitute contributory negligence on his part sufficient to bar any recovery for damages against the railway company for injuries which he may sustain in a collision with a train, due to his omission to exercise the caution stated; and this is true, notwithstanding the fact that the employes of the railway company have neglected to give the signals of the train’s approach to the crossing, required by law to be given.

Was this failure upon Rusynik’s part such negligence as prevents a recovery? We think, in the light of the adjudicated cases, that such conduct constitutes contributory negligence which prevents recovery. It was Rusynik’s duty to use his senses of sight and hearing to avoid injury to himself when he went upon this grade crossing, which is admittedly a place of danger. The time to use his senses for his own protection was just before going into the zone of danger, and they should be employed in a manner that would make their use, both the looking and listening, effective.

The rule as to the duty of a person going upon a railroad crossing has been announced by this court many times. Cleveland, C. & C. Rd. Co. v. Crawford, Admr., 24 Ohio St., 631, 15 Am. Rep., 633; Cleveland, C., C. & I. Ry. Co. v. Elliott, 28 Ohio St., 340; New York, C. & St. L. Rd. Co. v. Kistler, 66 Ohio St., 326, 64 N. E., 130; B. & O. Rd. Co. v. McClellan, Admx., 69 Ohio St., 142; Cleveland, C., C. & St. L. Rd. Co. v. Lee, Admr., 111 Ohio St., 391, 145 N. E., 843; Buell, Admx., v. New York Cent. Rd. Co., 114 Ohio St., 40, 150 N. E., 422; Detroit, T. & I. Rd. Co. v. Bohrs, 114 Ohio St., 493, 151 N. E., 714; Toledo Terminal Rd. Co. v. Hughes, 115 Ohio St., 562, 154 N. E., 916; Baltimore & O. Rd. Co. v. Heck, 117 Ohio St., 147, 157 N. E., 485. The case of Baltimore & O. Rd. Co. v. Goodman,, 275 U. S., 66, 48 S. Ct., 24, is also cited by plaintiff in error in support of its contention.

The majority of the court are of opinion that no “phase of the facts, as shown by the evidence upon the subject of contributory negligence, will warrant the inference that the plaintiff, at the time of the injury, was exercising due care,” McMurtrie v. Wheeling Traction Co., supra; that his conduct showed such negligence on his part contributing to his injury as to prevent a recovery.

Our attention is called to the statutory violation of the plaintiff in error in failing to give the signals required by law in approaching the crossing, and it is urged that this is negligence per se. The case of Schell v. Du Bois, Admr., 94 Ohio St., 93, 113 N. E., 664, L. R. A., 1917A, 710, is relied upon, but it is to be noted that the defendant is liable for such violation, provided an injury proximately caused thereby is not directly contributed to by the injured person.

In the light of this record and the declaration of the rule in the cases above set forth, we find it our duty to reverse the judgment of the Court of Appeals and affirm that of the court of common pleas.

Judgment of the Court of Appeals reversed, and that of the common pleas affirmed.

Marshall, C. J., Kinkade, Jones and Matthias. JJ., concur.  