
    The Columbus, Delaware & Marion Electric Co. v. Brown.
    (Decided January 8, 1932.)
    
      Mr. William P. Moloney, for plaintiff in error.
    
      Mr. Frank Wiedemann, for defendant in error.
   Justice, P. J.

This is a personal injury case. The plaintiff, Nellie Brown, won, the verdict being for $750, upon which a judgment was entered. The defendant brings error.

On the 6th day of September, 1930, about 5:30 p. m., plaintiff was riding in an automobile driven by her husband in a northerly direction upon David street in the city of Marion, Ohio. It had been raining, and the street, which was paved, was slippery. In the center of the street were tracks of the defendant Electric Company, upon which it ran its interurban cars. Near the intersection of Darius and David streets, plaintiff’s husband lost control of the automobile and it collided with an automobile parked on the east side of David street about fifty feet north of Darius street, and by reason thereof plaintiff sustained serious injuries.

In her petition plaintiff alleged that the top surface of the rails for a distance of fifty feet or more north of the intersection was not kept and maintained by the defendant to the established grade of the street, but was at least two inches higher than the grade thereof, and that a large hole existed between the rails of the tracks a short distance north of the intersection, all in contravention of certain provisions of certain ordinances of the city of Marion, Ohio. She further alleged that defendant knew of the existence of the hole and the position of the rails, or should have known of them by the exercise of ordinary care; and that it was the duty of the defendant to repair the street between the rails and keep it free from nuisance. She further alleged that the right rear wheel of the automobile in which she was riding came in contact with the raised rail while in the hole aforesaid, and by reason thereof broke off, directly and proximately causing the collision, with the resultant damages.

The defendant answered, denying any negligence upon its part.

At the trial of the case, plaintiff offered in evidence, certain ordinances of the city of Marion, Ohio. The trial judge refused to admit them. The ordinances were neither read into the record nor attached as exhibits. We, therefore, do not know their contents.

The claimed errors are: First, failure of the trial court to direct a verdict for defendant at the close of all the evidence; second, the charge; third, verdict not sustained by sufficient evidence.

It is the position of the plaintiff in error that, in the absence of an ordinance or ordinances requiring it to keep in repair and free from nuisance the pavement on David street between its rails, and requiring it to keep its rails level with the grade of the street, no duty devolved upon it to so do, and hence no liability exists, even if plaintiff was directly and proximately injured by reason of tbe existence of said hole and tbe position of said rails. To tbis proposition we do not accede. Admittedly, tbe defendant was occupying a portion of David street, and tbe presumption is that its occupation and use were lawful. It therefore was its duty, even in tbe absence of an ordinance requiring it to so do, to keep tbe portion of said street so occupied and used by it in repair and free from nuisance to tbe end that plaintiff and others lawfully using said portion of tbe street would not be injured. Volume 25 Ruling Case Law, 1173, Section 54. Tbe trial court, therefore, did right in refusing to direct a verdict for tbe defendant.

Tbe trial court instructed tbe jury in part, as follows: “It was tbe duty of tbe railroad company to keep its tracks and paving in between tbe rails and a foot on each side thereof, in repair and free from nuisance, and in a reasonably safe and suitable condition for public travel.”

Tbis instruction is correct. We quote tbe following from volume 25 Ruling Case Law, page 1172: “Tbe space which it is tbe general duty of tbe railway company to keep in repair is that space between tbe tracks and outside tbe tracks as far as tbe ends of tbe cross ties on which tbe tracks rest.”

Tbe last claim of error challenges tbe sufficiency of tbe evidence. In order to dispose of tbis assignment of error, we were required to, and have, read tbe entire record.

Upon tbe issues of negligence and proximate cause, Justice, P. J., and Crow, J., are of tbe opinion that tbe verdict is against tbe decided weight of tbe evidence. They, therefore, vote to reverse tbe judgment and remand tbe cause for a new trial.

Klinger, J., however, is of a contrary opinion. Under tbe Constitution of Ohio tbe verdict and judgment, therefore, cannot be disturbed by this court. Article IY, Section 6, Constitution of Ohio.

All other claims of error have been noted and found to be without merit.

Entertaining these views, it follows that the judgment below should be affirmed.

Judgment affirmed.

Crow and Klinger, JJ., concur.  