
    Van Order, Admr., v. City of Columbus et al.
    (Decided March 12, 1931.)
    
      
      Messrs. Cowan, Adams & Adams and Mr. George H. Jackson, for plaintiff in error.
    
      Mr. J. L. Davies, city attorney, Mr. E. W. McCormick and Mr. Baxter Evans, for defendant in error, the city of Columbus.
    
      Mr. Donald J. Hoskins, prosecuting attorney, and Mr. Ralph J. Bartlett, for defendant in error, Franklin county.
   Kunkle, J.

Plaintiff in error, Fred Yan Order, administrator, being the plaintiff in the lower court, in his petition claims, in brief, that the defendant city of Columbus is a municipal corporation organized under the laws of Ohio, that the defendant board of county commissioners of Franklin county is the governing body of Franklin county, a body politic under the laws of Ohio; that North Eureka avenue is a public street and highway in the city of Columbus and is also a part of the county road system within Franklin county; that said North Eureka avenue is also known as Deshler road; that said city of Columbus and said board of county commissioners of Franklin county maintain, supervise and control said North Eureka avenue, and maintain and control on said North Eureka avenue just south of Westwood drive a bridge over a creek known as Dry Run; that said bridge is 25 feet long and 19 feet high from the floor level of said bridge to the water level of Dry Run, and the roadway across said bridge is gravel, and it slopes down from its center to the sides of the bridge so that the center of said roadway across said bridge is one foot higher than the sides of the bridge; that at the time hereinafter named the east side of said bridge was unguarded, that immediately north of said bridge said roadway inclines upward at an angle of 25 degrees, that at the foot of said incline is the north terminal of said bridge, that said North Eureka avenue at the point of said bridge is a much-traveled public street, that the defendant the board of county commissioners negligently failed to construct and maintain a guard rail or other means of protection on the east side of said bridge, and that the defendant city of Columbus negligently failed to construct and maintain a guard rail or other means of protection on the east side thereof; that defendants knew, or ought to have known, of said condition of said bridge; that on May 18, 1929, at about 10 o’clock p. m., James Van Order, the deceased, was driving his Ford automobile south on said Eureka avenue; that at said time John Waldo was driving his automobile north on said Eureka avenue; that just as James Van Order’s Ford reached the north terminal of said bridge the hub cap and fender of the automobile of said Waldo struck the hub of the automobile of the Said James Van Order; and that by reason of such impact the car of James Van Ordér turned toward said unguarded side of said bridge, and by reason of, and as the proximate result of said defendants’ failure to construct and maintain a guard rail or other means of protection on the east side of said bridge, said car ran over the east side of the bridge and fell into the water below and drowned said James Van Order, by reason whereof plaintiff, as administrator of the estate of James Van Order, asks judgment in the sum of $20,000.

Separate answers were filed by the respective defendants below, consisting principally of a general denial and an averment that the accident in question was due solely to the negligence of the said James Van Order. On the issues joined the case proceeded to trial before a jury. At the conclusion of the testimony of plaintiff in error the defendants made separate motions for a directed verdict in tbeir favor.

After argument upon such motions the lower court sustained the same upon the ground that the failure to erect and maintain a guard rail at the point in question was not the proximate cause of the accident in question, but at most would be# merely a remote cause such as would not entitle plaintiff to recover.

Motion for new trial having been filed and overruled, and judgment entered in favor of the defendants below, error is prosecuted to this court.

Do the facts set forth in the bill of exceptions present such a situation as would warrant the trial court in determining as a matter of law what constituted the proximate cause' of the injury in question, or should the question of determining what was the proximate cause of the accident and injury have been submitted to the jury under proper instructions of the court?

It appears from the bill of exceptions that on May 18, 1929, at about 10 o’clock at night, the deceased was killed, when the Ford automobile, which he was driving, ran off the east side of the bridge over Dry Run on North Eureka avenue. It further appears that it was from 15 to 17 feet from the road level to the creek below; that the sides of the bridge were entirely unguarded; that James Van Order was driving south at a speed of about 15 miles per hour; that as his car reached the bridge another car going north was driven in such manner that it struck the front wheel of Van Order’s car; that Van Order’s car thereby turned abruptly to the left, and ran off the unguarded side of said bridge; and that said car of Van Order landed in the bed of the stream, upside down, by reason whereof James Van Order was killed.

It is admitted that there was no guard rail or other protection along the east side of the culvert. A careful examination of the testimony found in the bill of exceptions, especially that of the witness James O. Evans, who was an occupant of the car with James Van Order, discloses that, as they were approaching the bridge, the witness Evans noticed a red lantern at the side of the roadway and called Van Order’s attention thereto; that Van Order applied the brakes and slowed up the car to something like 15 or 17 miles an hour; and that their car was then struck by the other approaching automobile, which in the nature of things would tend to further reduce or slacken the momentum of the Van Order car. "Was the trial court justified in finding that the absence of such barriers as are required to be maintained could not be considered, under the circumstances disclosed by the evidence, a proximate cause of the accident and the resultant death of Van Order? During the oral argument, counsel for defendants stressed with considerable force the claim that no barrier such as would have stopped this car is required to be maintained by either the city or county authorities. We think it might be claimed under the circumstances disclosed by the record that a slight barrier might have' prevented this car from going over the bridge into the creek below; at least we cannot escape the conclusion that, when the reduced speed of the Yan Order car is considered, and the further necessary slackening of its speed by coming in contact with the other automobile, the question becomes one of fact for the jury to determine rather than the trial court to determine whether the presence of an ordinary barrier might not have prevented the accident, and its absence might not be considered the proximate cause of the injury.

We have considered with care the very exhaustive briefs which have been filed by counsel, and without quoting from the authorities in detail we are of opinion that the Ohio authorities support the claim of plaintiff in error that this was a question for the jury to determine rather than the trial court. Being of that opinion it follows that the judgment of the lower court must be reversed, and the cause remanded for such further proceedings as are provided by law.

Judgment reversed and cause remanded.

Allread and Hornbeck, JJ., concur.  