
    Short, a Minor, v. The Pennsylvania Rd. Co.
    (Decided May 8, 1933.)
    
      Mr. L. J. Ziliox, for plaintiff in error.
    
      
      Messrs. Matthews & Matthews, for defendant in error.
   Hamilton, P. J.

This action grows out of a suit by William Short, a minor, through his next friend, against the Pennsylvania Railroad Company, defendant in error here, for personal injuries suffered by such minor.

At the close of the evidence the trial court instructed a verdict for the defense, and entered judgment on the verdict, from which judgment error is prosecuted to this court.

The petition recites:

“That on or about the 7th day of November, 1931, at 2:45 A. M., plaintiff was a passenger in an automobile being driven by Stanley E. Short in an easterly direction on Augspurger Avenue, which was and is a public highway in the Village of New Miami, Ohio, and the principal street in said Village, much used and frequented by the public. That when said automobile reached a point where said defendant’s railroad tracks crossed and intersected said Augspurger Avenue, said highway and crossing was blocked and obstructed by a train of cars attached to an engine of defendant’s. That said train of freight cars was carelessly and negligently left to stand upon and over said crossing by the agents and servants of said defendant in charge thereof for a longer period than five minutes, to-wit: for a period of one hour. Said cars were allowed to remain on said crossing without any attention to said crossing or the consequence to the convenience, or life and limb of this plaintiff and other persons having occasion to pass such obstruction. That at the time aforesaid while said train was so unlawfully standing on said crossing the automobile in which plaintiff was riding was driven into and against one of the cars of the said defendant standing on said crossing. That plaintiff was without any fault or negligence at the time the automobile struck said obstruction, but the injuries plaintiff complains of were caused solely by reason of the carelessness and negligence of the defendant.
“Plaintiff says that the collision herein complained of occurred in the night time and that said crossing through the carelessness and negligence of the defendant at said time was unequipped with gates and unattended by a watchman or a flagman. That through the carelessness and negligence of the defendant no means whatever was provided by the defendant at such crossing for the purpose of giving warning to any person approaching said crossing and the obstruction so carelessly and negligently allowed to remain thereon by defendant.”

The answer admits that defendant maintains the railroad crossing at the intersection of Augspurger avenue, in the village of New Miami, that it maintains and operates the line extending into and through the village of New Miami, that the train had been standing upon.said crossing for longer than five minutes, and admits that there was no watchman or flagman or gates at the crossing; it denies negligence and charges that Stanley Short, the driver of the automobile, was operating the automobile with insufficient lights, that he failed to exercise care in looking ahead, and that he was driving the automobile in such manner as to be unable to stop within the assured clear distance ahead. The answer denies specifically other allegations in the petition not admitted, and in the second defense charges contributory negligence on the part of plaintiff, in that he was voluntarily riding in an automobile with insufficient lights, that the automobile was driven with his consent, and that he failed to exercise due care in keeping a lookout ahead and warning the driver of the presence of this freight car upon this crossing.

Motion was made at the close of plaintiff’s evidence for an instructed verdict, which, was overruled, whereupon the defendant put on two witnesses tending to show negligence on the part of the driver of the motor vehicle. Thereupon the motion for an instructed verdict was renewed, which motion the court granted.

Since negligence of the driver of the automobile cannot be imputed to the plaintiff, the case is here on the evidence presented by plaintiff, and the result depends on whether or not the plaintiff’s evidence raises a presumption of contributory negligence on the part of the plaintiff, which presumption plaintiff failed to counterbalance; and whether the evidence tends to show in any degree any negligence on the part of defendant contributing to the injury.

The record discloses that the driver of the automobile was driving a number of persons home from a dance, of whom this plaintiff was one; that he was driving along the much traveled highway; that it was a foggy night, and that while he was driving at a moderate rate of speed he was blinded 'by a light, which, together with the fog, made it impossible for him to see the cars across the track in time to stop the automobile before striking the car, from which the collision occurred and the injury resulted.

There is no evidence in the record that the lights of the automobile were insufficient; nor is there a scintilla of evidence that the plaintiff failed in any way to exercise due care for his own safety under the circumstances.

Defendant admits in the answer that it violated the state law which exacts a penalty for blocking a crossing for more than five minutes. This calls for the application of the well-established rule that the violation of a state law is negligence per se, and, if a proximate cause of injury, liability follows.

On the question of the defense of insufficient lights it is enough to say that this was a question of fact for the jury and not one of law. Tresise v. Ashdown, Admr., 118 Ohio St., 307, 160 N. E., 898, 58 A. L. R., 1476.

The trial court in directing the verdict seems to have followed the decision in the case of Cleveland, C., C. & St. L. Ry. Co. v. Gillespie (Ind. App.), 173 N. E., 708. In the Gillespie case there were several facts similar to those present in the case under consideration. The holding of the Gillespie case is contrary to the decision in the case of Tresise v. Ashdown, Admr., 118 Ohio St., 307, 160 N. E., 898, 58 A. L. R., 1476. Moreover, the statute of Indiana is not the same as the statute of Ohio. Neither is it shown that the rule of negligence per se is applied by the courts in the state of Indiana. Moreover, it will be noted in the opinion and decision in the Gillespie case that the court did not enter judgment on the facts, but reversed the case and remanded it for a new trial. The court, in the Gillespie case, considered the case to be one for the jury, and reversed it on the weight of the evidence. Moreover, one of the judges wrote a strong dissenting opinion. The case is no authority in the case under consideration.

Counsel for defendant in error argue in the brief that to constitute negligence the violation of a statute requires a showing that an obligation imposed was for the benefit of the person injured, and argues that plaintiff was not of that class. Counsel, however, admit in the brief that the statute was enacted for the purpose of keeping highways open for public travel. This admission is sufficient under the facts of this case to refute the claim of nonliability to plaintiff, as he was certainly using the public highway at the time, as' he had a right to do.

Our conclusion is that the court erred in instructing a verdict, and the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Eoss and Cushing, JJ., concur.  