
    Questions of negligence at a railway CROSSING.
    [Circuit Court of Franklin County.]
    The C., C. & St. L. Ry. v. Carrie L. Sivey, Administratrix.
    Decided, March 25, 1905.
    
      Negligence — Charge of Court — Words and Phrases — Failure of Electric Gong to Sound.
    
    1. It is error in a negligence case to charge the jury that the defendant, in order to be entitled to a verdict, must “satisfy” them as to the claim of contributory negligence, or to say that the defendant was bound to use such guards or warnings as would “prevent an accident” to a person using ordinary care.
    2. The only question for a jury with reference to an electric gong voluntarily placed at a railway crossing which was out of repair and failed to ring, is as to whether the company had used ordinary care under all the circumstances to prevent the accident. The fact that such a gong is not ringing does not relieve one about to pass over a railway crossingfrom the duty to look and listen.
    3. A warning to the jury that its special findings must consist with its general verdict, is vicious if not erroneous.
    4. A city avenue, extended through a sparsely settled region beyond the municipal limits, is noit a city street, but a country road.
    Dustin, J.; Walters, J. (sitting in place of Wilson, J.), and Sullivan, J., concur.
   This court regards the doctrine of Russell v. Russell, 6 C. C., 294, later affirmed by the Supreme Court, as sound, and hence has been accustomed to hold, whenever the point has been raised, that a charge in a civil case requiring the jury to be “satisfied” upon any question, is error. We think, therefore, that the court in this case erred in its charge where it says:

“To establish this (meaning contributory negligence), the burden is upon the defendant, and if the defendant has not satisfied you that the deceased himself was guilty of contributory negligence, you must resolve this claim in favor of the plaintiff.” See also Kelch v. The State, 55 O. S., 146-152.

Again we think there was error in giving special charge III requested by plaintiff below, which reads:

‘ ‘ If you find from the evidence that the defendant established and erected an electric gong at this crossing, I charge you that it was the duty of the defendant to keep the same in repair, and a failure to do so, whereby said gong did not sound when the train which caused the death of Albert Sivey approached and ran over the railroad crossing, is negligence, ’ ’ etc.

The placing of the gong at that crossing was a voluntary matter upon the part of the railroad company. It was not required by any statute or the railway commissioner of Ohio to put it there, or to keep it in repair. Hence, the above positive instruction that a failure to keep same repaired amounted to negligence, was wrong. It was proper only to consider the condition of the gong with reference to the company’s duty to exercise ordinary care under all the circumstances.

Special instruction VIII given at request of 'plaintiff below, viz. :

“It is admitted in the case that Eleventh avenue up to the defendant’s right of way was, at the time of the killing of Albert Sivey, a duly dedicated, appropriated, improved and traveled street of the city of Columbus, and I charge you that the fact, if you find it to be a fact, that the vicinity of said avenue is sparsely inhabited did not warrant or authorize the defendant to run its trains across said crossing as it might over a country road crossing, but that the speed of its trains must be that of reasonable safety, having regard to the nature, situation and use of said crossing. ’ ’

This implies, if it does not declare, that the highway at the crossing- was a city street and not a country road, and not governed by the same rules of law as the latter; whereas the evidence indisputably shows that the crossing in question was and is outside the city limits; and is, in law, a country road, although -called an avenue.

There was error, we think, in refusing to give charge No. 1(3 before argument, as requested by defendant below, viz.:

“If you should find from the evidence that the obstructions at and about the crossing and the noises of the moving conveyance in which the decedent was riding were such that the decedent could not without stopping hear the approach of a train from the north; and that the decedent knew, or m the exercise of ordinary care on his part ought to have known that such were the conditions; and you further find that if he had stopped. and -listened1 first before driving onto the railway track he would have heard the train which struck him, and avoided the collision; and if you also find that the decedent did not so stop and listen, but drove onto the track without taking this precaution, and was killed; then the decedent was guilty of contributory negligence, and the plaintiff can not recover in this action, but your verdict should be for the defendant. ’ ’.

The difficulty of hearing a train, by reason of intervening objects calculated to break the sound, and the noise of decedent’s wagon on the paved street, made it proper, we think, to submit to the jury the question whether or not Sivey in the exercise of ordinary care should have stopped to listen. R. R. Co. v. Suhrwiar, 22 C. C., 560.

Even upon the theory of plaintiff below that it is the duty of the railway company to keep the gong in order, nevertheless the traveler may in view of other noises be bound, in the exercise of ordinary care, to stop and listen for the ringing of the gong.

Again in the general charge of the court at the bottom of page 334 we find this language :

“Would a person of ordinary care be led or induced to injury by reason of the location of this bell and by reason of the fact that it did not ring, and relying upon the fact that it would ring in case a train was coming?”

This assumed, as proven or admitted, the fact that the bell did not ring; whereas that was a question in dispute.

On page 355 in the general charge we observe this language:

“If you should find that * * # said company had failed to adopt sufficient safeguards or warnings to prevent an accident to the person using ordinary care,” etc.

John F. Wilson, for plaintiff in error.

Gilbert H. Stewart, for defendant in error.

This would impose upon the company a duty much in excess of ordinary care, viz., an absolute assurance against accident.

We think also the instruction warning the jury that its special findings must consist with its general verdict or the latter would be set aside, was vicious if not erroneous. “The true finding of the issues submitted to them should not be disturbed or qualified by such a consideration;” just as it is wrong to instruct a jury that a verdict for a certain amount is necessary to carry costs. Railway v. Bartram, 11 O. S., 457.

The foregoing errors, we think, were prejudicial and by- reason thereof the judgment of the common pleas court should be' reversed, and a new trial granted.

The remaining assignments of error we think are not well taken.  