
    The Lake Shore & Michigan Southern Railway Co. v. Ehlert, Administrator and The Cleveland, Cincinnati, Chicago & St. Louis Railway Company.
    
      Gates across a highway at railroad crossing — When shut warn public of passage of trains — Passer so warned guilty of negligence — Cannot recover, when.
    
    1. When the gates across a highway at a railroad crossing are closed they definitely warn the public that the crossing, whether it is of a single or a double track, is, for the time being, to be used for the passage of trains.
    2. One who, with knowledge of such warning, passes a closed gate and takes a position upon the crossing is guilty of negligence which will prevent a recovery for injuries he may receive from a passing train.
    (Decided November 13, 1900.)
    Error to the circuit court of Cuyahoga county.
    As administrator of Christian Holz, deceased, Ehlert brought suit in the court of common pleas against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and the Lake Shore & Michigan Southern Railway Company, to recover damages sustained by the next of kin of his intestate, who, it was alleged, was fatally injured at a street crossing in Cleveland by a train of the former company, which was negligently run on a track owned by the latter company, upon which the warning gates were negligently constructed and operated. It is alleged in the petition that when Holz approached the crossing the gate over the street was down for the passage of a west bound train upon the north track, the gate covering the carriage way of the street, but not the side walk ; that Holz took a position inside the gate and within three feet of the south rail of the south track awaiting the passage of said train, and while so standing was struck by the engine of a train which was passing eastwardly on the south track at a high rate of speed; that neither the gateman, who was present, nor any other employe of either company warned Holz of the approach of said east bound train although it was then due. It is alleged that there was negligence in running the train at a high rate of speed without signals, and “in not maintaining at said crossing a sufficient obstruction to the passage of people on the sidewalk and in not giving notice of the approach of said train.” Demurrers to the petition were overruled and the companies answered separately, each.denying the charge of negligence against it, and alleging that the death of Holz was due to his own negligence. The evidence offered by the plaintiff on the trial tended to support the allegations of the petition. It showed that the gates on either side of the double track were down; that the deceased passed one of them and was standing by the nearer track awaiting the passage of a train upon the other, and was struck by an engine passing upon the track by which he was standing. The defendants requested the court to give the following instruction, which was refused:
    “When the gate at a railway crossing is down, persons using the highways cannot, in the exercise of ordinary care, go within the gate or between the gate and the tracks except at their own risk of injury, and if you find the deceased saw the gate was down as he approached the crossing, and passed by the gate and between it and the track, he did so at his own peril of being struck by a train upon the other track.”
    
      The jury returned a general verdict for the plaintiff, and answers to the following questions submitted to them: “Did the deceased know there was no arm across the sidewalk, as he approached the gates and before he stopped to permit the freight to pass?” Answer, “Yes.” “Did the deceased see the gates were down, as he approached the crossing?” Answer, “Yes.” “Did the deceased pass the gates and go nearer to the track than the gates?” Answer, “Yes.”
    The defendants filed motions for judgments on the special findings, which were overruled. They also filed motions for a new trial, which were overruled. A judgment was then entered on the general verdict, and that judgment was affirmed by the circuit court. By petition and cross-petition, a reversal of said judgments is sought.
    
      Dickey, Brewer & McGowan, for plaintiff in error,
    citing the following cases: Railway Co. v. Schneider, 54 Ohio St., 678; Cleary v. Philadelphia Ry. Co., 140 Pa. St., 19; Granger v. Boston & Albany Railroad, 146 Mass., 276; Maryland Central Co. v. Neubeur, 62 Md., 391; Douglass v. Railroad Co., 5 American Neg. Rep., No. 1, p., 110; Geiselman v. Scott, 25 Ohio St., 86; Railway Co. v. Crawford, 24 Ohio St., 631; Bellefontaine Railway Co. v. Snyder, 24 Ohio St., 670; Railway Co. v. Elliott, 28 Ohio St., 341; Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Steel, Admr. v. Kurtz, 28 Ohio St., 191; Byrd v. Blessing, 11 Ohio St., 362; Berry v. State, 31 Ohio St., 219; Lowe v. Lehman, 15 Ohio St., 179; Bain v. Wilson, 10 Ohio St., 15; Krause v. Morgan, 53 Ohio St., 26.
    
      E. A. Foote and John T. Dye, for the C. C. C. & St. L. R. R. Company, citing the following cases: Cleary v. Pennsylvania State Ry. Co., 140 Pa. St., 19; Davy 
      v. Railway Co., 11 L. R. Q. B. Div., 213; Young v. Railroad Co., 107 N. Y., 500; Marden v. Railroad Co., 159 Mass., 393; Debbins v. Railroad Co., 154 Mass., 402; Douglass v. Railway Co., 76 N. W. Rep., 356; Granger v. Railroad Co., 146 Mass., 276; Allerton v. Railway Co., 146 Mass., 241; Marland v. Railroad Co., 123 Pa. St., 487; Hauser v. Railroad, 147 Pa. St., 440; Railroad Co. v. Fitzsimmons, 40 Ill. App., 360; Mc-Geehan v. Railroad Co., 149 Pa. St., 188; Buckley v. Railroad Co., 78 N. W. Rep., 655; Peck v. Railway Co., 50 Conn., 379; Dlauhi v. Railway Co., 105 Mo., 645; Moore v. Railway Co., 108 Pa. St., 349; Rigg v. Railway Co., 158 Mass., 309; Woodward v. Oregon, 22 Pac., 1076; Thomas v. Banking Co., 40 Ga., 231; Galveston Co. v. Herring, 36 S. W., 129; Lepnick v. Gaddis, 18 Southern, 319; East Tenn. Co. v. Daniel, 42 S. W., 1062; McCain v. Louisville Co., 18 S. W., 537; Santa Fe etc. Railway v. Hurley, 36 Pac., 216; Atchison etc. Co. v. Irwin, 10 Pac., 820; Miller v. Chicago etc. Co., 23 N. W., 756; Chicago etc. Co. v. Rayburn, 38 N. E., 558; Schindler v. Milwaukee etc. Co., 43 N. W., 911; Gurley v. Missouri etc. Ry., 6 S. W., 218; Elliott v. Carter etc. Co., 73 N. W., 948; Long v. Doxey, 50 Ind., 385; Laykin v. Railway Co., 15 Ore., 220; Parmlee v. Adolph, 28 Ohio St., 10; Schaefer v. Sandusky, 33 Ohio St., 246; Railroad Co. v. Kehoe, 83 Md., 434; Railway Co. v. Staggs, 39 S. W. Rep., 295; St. L. Co. v. Ross, 33 S. W., 1054; Railway Co. v. Monday, 49 Ark., 257; Railroad Co. v. Watly, 69 Miss., 145; Kirtley v. Railway Co., 65 Fed. Rep., 386; Snyder v. Railway Co., 60 Ohio St., 487; Railway Co. v. Miller, 149 Ind., 490; Railway Co. v. Bryan, 107 Ind., 51; Keefe v. Railway Co., 92 Ia., 182; Railroad Co. v. Yeamans, 86 Va., 860; Raines v. Railway Co., 39 West Va., 50; Holmes v. Railway Co., 97 Cal., 161; Everett v. Railroad Co., 115 Gal., 105; Schmolze v. Railroad Co., 83 Wis., 659; Railroad Co. v. Didzoneit, 1 App. D. C., 482; Railway Co. v. Mertes, 38 Neb., 448; Sweeney v. N. Y. Steam Co., 15 Daly, 312; Railway Co. v. Well, 90 Ala., 185; Murphy v. Deane, 101 Mass., 455; Elliott on Railroads, Vol. 3, Section 1155; Coulter v. Northern Ry. Co., 67 N. W. R., 1046; Grand Trunk Ry. Co. v. Ives, 144 U. S., 408; Improvement Co. v. Stead, 95 U. S., 161; Chicago & N. W. Ry. Co. v. Netolicky, 67 Fed., 665; Clark v. Canadian Pac. Ry. Co., 69 Fed., 543; Thompson v. N. Y. Central Ry. Co., 110 N. Y.,636; Shaber, Admr. v. St. Paul M. & N. Ry. Co., 9 N. W. R., 575; Winstanley v. Chicago, M. & St. P. Ry. Co., 72 Wis., 375; Atchison, T. & S. F. Ry. Co. v. Hague, 38 Pac., 257; Kerwhacker v. Railway Co., 3 Ohio St., 172; Timmons v. Railway Co., 6 Ohio St., 106; Railway Co. v. Terry, 8 Ohio St., 570; Railroad Co. v. Whittaker, 24 Ohio St., 642; Railroad Co. v. Picksley, 24 Ohio St., 654; Railroad Co. v. Depew, 40 Ohio St., 121; Coal Co. v. Estievenard, 53 Ohio St., 43; Stallman v. Railway Co., 22 Ohio St., 1; Rathgeb v. Railway Co., 32 Ohio St., 67; Meek v. Pa. Co., 38 Ohio St., 632; Whitacre v. Railway Co., 35 Ohio St., 627; Weisel v. Railway Co., 55 Ohio St., 155; Kirschbaum v. Railway Co., 24 Ohio St., 119; Davis v. Mann, 10 M. W., 546; Beach on Contributory Negligence, Sections 10 to 13 and 27 to 35; 3 Elliott on Railroads, par. 1175.
    
      John M. Weld and Foran, McTighe & Baker, for Ehlert, citing the following cases: Baker v. Pendergast, 32 Ohio St., 494; Meek v. Pennsylvania Co., 38 Ohio St., 632; Hart v. Devereux, 41 Ohio St., 565; Mynning v. Railroad Co., 28 Am. & Eng. Ry. Cases, 665; 64 Mich., 93; 31 N. W. Rep., 147; Stall v. Rail
      road Co., 57 Mich., 239; Allen v. Willard, 59 Pa. St., 374; 34 Cal., 153; Johnson v. Hudson Railway Co., 20 N. Y., 65; Insurance Co. v. Palm, 5 Ohio St., 107; Evans v. Adams etc. Co., 122 Ind., 362; Ind. Stone Co. v. Stewart, 7 Ind. App., 563; Borshall v. Detroit Ry., 73 N. W. Rep., 551; Railway Co. v. Garcia, 75 Tex., 583; Railway Co. v. Monday, 49 Ark., 257; O’Brien v. McGinty, 68 Me., 552; Iliver v. Railway Co., 7 Ct. App. Col., 13; Davis v. Guarnieri, 45 Ohio St., 470; Rapalje’s Digest, Vol. 3, p. 512; Sherman & Redfield on Negligence, 4 Ed., 294; 9 Bosworth, 536; 30 N. E. R., 37; Railway Co. v. Schneider, 45 Ohio St., 678; Rapalje’s Digest, Vol. 3, 478; 35 Am. & Eng. Railway Cases, 334; Railway Co. v. Wilson, 42 Am. & Eng. Ry. Cases, 153; 133 Ill., 55; 24 N. E. R., 555; Railway Co. v. Webb, 90 Ala., 185; Webb v. Insurance Co., 6 Ohio, 456; McGatrick v. Wason, 4 Ohio St., 566; Breese v. State, 12 Ohio St., 146; Dean v. King & Co., 22 Ohio St., 118; Railway Co. v. Sargent, 19 Ohio St., 438; Rorer on Railroads, Vol. 1, page 529; Eaton v. Fitchburg R. Co., 129 Mass., 364; Railway Co. v. Perkins, 125 Ill., 127; Schmidt v. Railroad Co., 75 Ia., 606; Railroad Co. v. Crawford, 24 Ohio St., 631; Railroad Co. v. Snyder,24 Ohio St., 670; Railroad Co. v. Picksley, 24 Ohio St., 654; Railway Co. v.White’s Admr. 5 S. E. Rep., 573; Railway Co. v. Greany, 24 Am. & Eng. R. Cas., 473; Norton v. Railway Co., 29 S. E. Rep., 886 (N. C.); Railway Co. v. Hedges, 105 Ind., 398; McGhee v. White, 66 Fed., 502; Railway Co. v. Kelly, 80 Ill. App., 675; Railroad Co. v. Murphy, 50 Ohio St., 135; Railway Co. v. Dunkman, 4 S. W. Rep., 670; Winstanley v. Railway Co., 39 N. W. R., 856; 72 Wis., 375; Ramsey v. Railway Co., 89 Ky., 99; Hicks v. Railway Co., 164 Mass., 424; 
      Schweinfurth v. Raihoay Co., 60 Ohio St., 215; Railroad Co. v. Schade, 15 Cir. Ct., 424, 8 Cire. Dec. 316, 57 Ohio St., 650; Booth on St. Ry,, Section 306; Railway Co. v. Anderson, 85. Fed. Rep,, 413; Railway Co. v. Ives, 144 U. S., 408.
   Shauck, C. J.

The rule by which the liability of the companies should be determined is a corollary from that defined in Railway Company v. Schneider, 45 Ohio St., 678. That case related to a fatal injury received at a grade crossing, and the deceased was held not to have been guilty of contributory negligence because “an open gate with a gateman in charge is notice of a clear track and safe crossing, and, in the absence of other circumstances, when the gates are open, and the gateman present, it is not negligence in the persons approaching * * * to pass on to the track through the open gates without stopping to listen.” The company was held liable because it had not closed the gates and thus given to persons approaching the crossing the warning of danger for which the gates were an obvious preparation, and upon which it had authorized the public to rely. In the present case, as the petition admits, the testimony shows, and the jury specially found, the gates were closed, and the deceased had knowledge of that fact when he went upon the crossing. The rules by which liability is determined are to be applied impartially, and there is manifest error in the judgments of the courts below. In such circumstances the company cannot be held liable because it does not give the warning which its obvious preparation authorizes the public to expect, and liable as well although it gives the warning.

The allegation of the petition that the company was negligent ‘in not maintaining at said crossing a sufficient obstruction to the passage of people on the sidewalk” indicates a misconception of its duties. It is not required to interpose such obstacles as will make it impossible for persons to go upon the crossing. Its duty is to give the warning which it has authorized them to expect.

The allegation that “the gate was lowered across said street for the passage of a long freight train on the north track, which said freight train was then and there in the process of passing, from east to west on said north track,” indicates a misconception of the significance of closed gates. They signify that the space between them, whether occupied by a single or a double track, is, for the time being, to be used exclusively for the passage of trains. It would not be practicable to give separate warnings for each track, nor is there any necessity for such warning. The conclusion reached in Railway Company v. Schneider, supra, was justified by the object of diminishing the frequency of collisions at grade crossings. That object will be promoted by requiring persons approaching such crossings to heed the warning when it is given.

That there can be no recovery upon such facts as are here presented has been decided in numerous well considered cases. Among them are Buckley v. Flint & Pere Marquette Railroad Co., 119 Mich., 583; Douglas v. Chicago, Milwaukee & St. Paul Ry. Co., 100 Wis., 405; Cleary v. Philadelphia & Reading Railroad Co., 140 Pa. St., 19; Granger, Admr. v. Boston & Albany Railroad Co., 146 Mass., 276; Marden, Admr. v. Same, 159 Mass., 393.

The demurrers to the petition should have been sustained. The requested instruction should have been given. Upon the facts specially found there should have been judgment for the defendants below notwithstanding the general verdict.

Judgments of the circuit and common pleas courts reversed and judgment for plaintiffs in error.  