
    Gallup, Admr., v. The Toledo Terminal Rd. Co. et al.
    
      Negligence — Terminal company liable, irrespective of its negligence, where railroad negligently operated trains— Charge to jury erroneous — Both defendants relieved of liability where only one negligent — Contributory negligence defeating recovery not limited to direct and proximate cause — Contributory negligence bars recovery, when —Municipal ordinance constitutional — Another train not to pass crossing until detained travelers permitted to cross —Rule sustaining general verdict where error relates to one of several issues — Inapplicable where errors relate to different issues — Special request to charge jury before argument — Must literally state correctly legal propositions intended to be expressed.
    
    1. If facts and law warranted recovery against railroad company operating its trains on tracks of terminal railroad company pursuant to agreement, plaintiff also was entitled to verdict against latter company for death of truck driver in collision with former’s train, whether or not it was negligent.
    2. In action against railroad company and terminal company, on tracks of which former operated its trains by agreement, for death of truck driver in collision with one of such trains, instruction to find for defendants, unless they were guilty of negligence proximately or directly causing death, held prejudicial error as calculated to lead jury to understand that verdict should be for both defendants, if terminal company was not negligent, regardless of operating company’s negligence.
    
      3. Instruction to find for defendants in death action, if deceased was guilty of negligence “in the slightest degree causing or contributing to his death,” though defendants were guiíty of negligence proximately causing death, held prejudicial error in not qualifying statement as to contributory negligence by words “directly” or “proximately.”
    4. Decedent’s negligence, to bar recovery for his death, must either have been direct or proximate cause thereof, or have contributed directly or proximately thereto.
    5. Municipal ordinance, prohibiting passage of locomotive engine or car across street until all persons and vehicles detained by prior passage of another such engine or cars' have had ample time to cross tracks, held valid as police regulation.
    6. In action for death of truck driver in collision with train at street crossing, instruction that municipal ordinance, prohibiting locomotive engine or car from crossing street until all persons and vehicles' detained by prior passage of another such engine or cars have had ample time to cross tracks is unconstitutional, void, and of no effect, and must not be considered, held prejudicial error.
    7. Where some alleged errors' relate to one and some to another of issues involved, rule that general judgment, to which defendant is entitled under finding on either of two issues presented, will not be reversed for error in instructions relating exclusively to one of such issues, is inapplicable.
    8. Trial judge is not required to give to jury before argument any special requested instruction, unless it literally states correctly the legal proposition intended to be expressed.
    (Decided June 6, 1927.)
    Error: Court of Appeals for Lucas county.
    
      Mr. C. A. Thatcher and Mr. C. A. Meek, for plaintiff in error.
    
      Messrs. Fraser, Hiett, Wall & Effler, Mr. Walter A. Eversman, and Mr. Charles W. Racine, for defendants in error.
   Lloyd, J.

On the 23d day of April, 1926, Eobert D. Gallup, driving a 5-ton Mack truck, collided with a train of the defendant, the New York, Chicago & St. Louis Eailroad Company, known as the Nickel Plate, at the crossing of York street in Toledo, Ohio, and the tracks of the Toledo Terminal Eailroad Company, commonly known as the Terminal, and subsequently died from injuries thereby then received by him. The trains of the Nickel Plate were operated upon the tracks of the Terminal, pursuant to an agreement between them providing therefor. York street intersects the tracks of the terminal at grade, and, as Gallup proceeding on York street in an easterly direction approached the tracks, a south-bound Hocking Valley train passed over the crossing on the westerly track; there being two tracks at this point. After this train had passed, Gallup proceeded to cross the railway tracks, and was struck by a north-bound Nickel Plate train approaching on the easterly track.

There was located at this crossing an electrically operated wigwag signal, so-called, which was swinging to and fro as the Hocking Valley train approached and passed over the crossing, but which plaintiff in error claims thereafter ceased to operate and was not operating when the Nickel Plate train approached and passed over the crossing. It was also claimed that no warning by bell or whistle was given of the approach of the latter train, and that certain ordinances of the city of Toledo, regulating the operation of trains therein, were violated. The defendants severally denied any negligence on their part and pleaded contributory negligence on the part of the decedent.

The trial in the court of common pleas resulted in a general verdict in favor of the defendant companies, to reverse which and the judgment entered thereon these proceedings in error were instituted by plaintiff in error, who, as administrator, commenced the action in the court of common pleas to recover damages for the alleged wrongful death of the decedent. Plaintiff in error will be referred to as plaintiff and the defendants in error either as defendants or as the Nickel Plate and the Terminal, respectively.

Special requests to instruct the jury before argument were presented both by plaintiff and by the defendants, some of which were given and some refused. Plaintiff claims that the trial court erred in refusing to charge the jury as requested by him, and in giving certain of the instructions requested by the defendants; also that the court erred in its general charge, and that the verdict of the jury is against the weight of the evidence. These alleged errors will be considered in the order above mentioned.

The trial judge gave to the jury defendants’ request No. 2 as follows:

“The burden of proof is upon the plaintiff to show by a preponderance of evidence that the defendant railroad companies were guilty of negligence in one or more of the respects set forth in plaintiff’s petition, and that such negligence was the proximate or direct cause of the death of Robert D. Gallup, and, unless you so find, your verdict must be for the defendant railroad companies.”

The only negligence charged against the Terminal is the failure of the wigwag signal, because of its alleged defective condition, to operate after the passing of the Hocking Valley train. Other than this, its liability, if any, was created by operation of law. If the facts and the law were such as to warrant a recovery by plaintiff against the Nickel Plate, then the plaintiff was entitled also to a verdict against the Terminal, because of the operating agreement existing between those two defendants, regardless of whether or not the Terminal was negligent. The jury may very well have understood this instruction to have meant, and, so understanding, to have found, that, if the Terminal was not negligent, the verdict should be in favor of both defendants, regardless of whether the Nickel Plate was or was not negligent; and nowhere in the general charge did the court instruct the jury otherwise. The giving of this instruction was therefore prejudicial error.

Request No. 3 of the defendants reads as follows:

‘ ‘ Should you find by a preponderance of evidence that the defendant railroad companies were guilty of negligence in any one or more of the respects alleged in the petition, and that such negligence was the proximate cause of the death of Robert D. Gallup, your verdict must nevertheless be for the defendant railroad companies if you further find by a preponderance of the evidence that said Robert D. Gallup was himself guilty of negligence in the slightest degree causing or contributing to his death.”

The giving of this instruction was prejudicial error, for the reason, that, if the decedent was negligent, his negligence, to bar a recovery, must either have been the direct or proximate cause of his death or have contributed directly or proximately thereto. This request, therefore, is obviously erroneous. The writer is of the opinion that it also incorrectly states the law, in that, if “such negligence was the proximate cause of the death of Robert D. GJ-allup,” there could be no contributory negligence on the part of the decedent that would bar a recovery. Several acts or omissions may together be the proximate cause of an injury, but, whatever the proximate cause may be, it excludes all other hypotheses. Contributory negligence is nothing more than negligence of a plaintiff and negligence of a defendant co-operating as the proximate cause of a resulting injury.

For the reason first above given as to the impropriety of request No. 3, the giving of defendant’s request No. 4 was also prejudicial error, in that the court failed likewise to qualify by either of the words “direct” or “proximate” what is stated therein as to contributory negligence of the decedent.

Section 1096 of the Municipal Ordinances of Toledo reads:

“If when a locomotive engine, car or cars, or train of ears, shall have crossed any street where travel is upon the grade of the ‘railroad track, no other locomotive engine or car shall cross such street until all detained persons and vehicles shall have had ample time to cross the railroad track or tracks.”

With respect to this ordinance, the court gave to the jury before argument the following special instruction requested by defendants:

“I charge you that Section 1096 of the Municipal Ordinances of the city of Toledo as set forth in plaintiff’s petition is unconstitutional, void, and of no effect, and you will give no consideration to that ordinance in your deliberations.”

A majority of this court concludes that the ordinance above quoted is within the principle announced in Leis v. Cleveland Ry. Co., 101 Ohio St., 162, 168, 128 N. E., 73, and is valid as a police regulation, and that the giving to the jury of this requested instruction was therefore prejudicial error.

We call attention to the fact that there is prejudicial error in the general charge of the court, in that the judge stated as to the law of contributory negligence that “if you should find that he (the decedent) was guilty of negligence which in the slightest degree contributed to cause his death, then your verdict will have to be for the defendants.”

This statement, in substance, was repeated in other portions of the charge. As we have indicated, the negligence of the decedent, to bar a recovery by plaintiff, must have directly or proximately contributed to his death. The use of either of these words would fulfill the requirement of the law in this regard. It is obvious also that the general charge of the trial court should harmonize with the finding of this court as to the validity of Section 1096 of the Municipal Ordinances of Toledo. It will be observed that some of the errors to which attention has been called relate to one, and some of them to the other, of the issues involved, and therefore the rule suggested by counsel, that, where a finding in favor of the defendant on either of two issues presented entitles him to a general judgment in his favor, such judgment will not be reversed for error in the instructions of the court to the jury relating exclusively to one of the issues, is inapplicable to the instant case.

We do not find that the court erred in refusing to give the instructions asked by plaintiff, for the reason that a trial judge is not required to give to the jury before argument any special requested instruction unless it literally states correctly the proposition of law which it is intended to express.

Having considered all of the alleged errors presented in the briefs of counsel, we find none prejudicial to plaintiff other than those to which we have referred. For the reasons given, the judgment of the court of common pleas is reversed, and the action remanded for a new trial.

Judgment reversed and cause remanded,

Richards and Williams, JJ., concur.  