
    Weaver v. The Columbus, Shawnee and Hocking Railway Company.
    
      Jurisdiction in error of the circuit court — Section 6709, Revised Statutes — Presumption that circuit coiirt passes upon all assignments in petition — Defendant in error must print and Ule record —To show assignments claimed improperly overruled, when— Court procedure — Railway company operating trains over crossings obscured by buildings — Care required of railroad — Law of negligence.
    
    1. It results from the provisions of Section 6709, Revised Statutes, that in all subsequent proceedings the presumption must be indulged that the circuit court passes upon all assignments in a petition in error prosecuted before it, and that when it reverses a judgment of the court of common pleas it holds all assignments of error to be not well taken except such as, in its mandate, may be stated as the basis of its judgment of reversal.
    2. A petition in error prosecuted in this court for the reversal of a judgment of reversal rendered by the circuit court meets a presumption in favor of the entire record of that court, including its express or implied holding against all assignments of error there made, and not specified as ground of reversal.
    3. ' When, in such case, the plaintiff in error in this court has printed so much of the record as will show the error of which he complains, and the defendant in error desires to support the judgment of reversal which he has recovered in the circuit court by showing that it should have been rendered upon assignments of error which were there expressly or impliedly overruled, he should, within the time fixed for the filing of his brief, print and file so much of the record as in connection with the printed record already filed, will show that such assignments were improperly overruled.
    4. When a railway company operates its trains over a highway crossing at grade in a municipality where buildings are so situated as to obscure the approach of trains, it is charged with the duty of exercising care commensurate with the danger there existing, although that may exceed the giving of signals by bell and whistle; but it is not the insurer of the safety of travelers using the crossing, though in so doing they exercise ordinary care.
    (Case No. 10024
    Decided March 19, 1907.)
    
      Error to the Circuit Court of Franklin County.
    Plaintiff brought suit in the court of common pleas to recover from the railway company damages for personal injuries sustained by him in a collision between his wagon upon which he was riding and a train of the railway company at a grade crossing in the Village of Rendville in Perry county, the collision resulting, according to the allegations of his petition, solely from- the negligence of the. company while he was in the exercise of. due care. The specific charges of negligence against the company were the construction and maintenance by it of a building so situated with respect to its road and the highway on which he was approaching the crossing that it interrupted, and, in connection with other buildings, prevented a view of the approaching train; that the train came upon the crossing at a high and dangerous rate of speed; that those operating it kept no lookout for persons about to cross the track; that warnings were not given and that no whistle was blown or bell rung, and that the train might have been stopped without injury to him after his peril would, with ordinary care, have been discovered. It is alleged that all this was done with the company’s knowledge of the character of the crossing. In its answer the company denied the allegations of the petition respecting .its negligence, and ah leged that the injuries which the plaintiff sustained were due to his own negligence.
    On the trial evidence was offered in support of the allegations of both petition and answer. Thereupon, after argument, the trial judge instructed the jury with respect to the law of the case, giving, among- others, the following" instruction: “If the crossing where, the collision occurred was rendered dangerous and the view of the railroad track .was obstructed so that travelers on the public highway could not see the railroad track in the direction from which the train was approach - ing because of the tool house or blacksmith shop kept and permitted to stand so near defendant’s track, then, the company must use such care and take such precautions to warn travelers on the public highway that notwithstanding such obstructions they by the use of ordinary care can avoid injury.”
    A verdict was rendered for the plaintiff, and the company - filed a motion for a new trial upon a number of grounds. The motion was overruled and a judgment rendered for the plaintiff for the amount of the verdict. The company thereupon ■ filed a petition in error in the circuit court for the reversal of said judgment, ten grounds being assigned, one of them being that the trial judge erred in the instructions given to the jury. In the circuit court the judgment was reversed for error, as' appears from its record, in giving the above quoted instruction, the journal containing no express ruling upon any of the remaining assignments of error. A petition in error is filed here for a reversal of the judgment of the circuit court, and with his petition the plaintiff files a printed record containing «0 much of the original record as relates to the propriety of the instruction stated as the ground of reversal.
    
      • Mr. L. G. Addison and Mr. J. L. Hampton, for plaintiff in error.
    The authorities are clear upon the proposition that the party, causing an obstruction to a crossing must be responsible for the consequences of that obstruction. To hold otherwise would be to place a premium upon negligence and to induce criminal carelessness. Wood on Railroads, Volume 2, page 1528; Thompson on Negligence, Volume 2, section 1509.
    This proposition of law is. supported by a long line of well considered cases, and, as stated by Judge Thompson, was followed so perfectly by. the trial court in the case at bar that there is absolutely no distinction between the language used.
    The charge of the court, as we contend, is a full, able and correct instruction to the jury upon the issues made by the pleadings and the evidence adduced by . the parties.
    There is such a deadly parallel between the language used by the trial court in the case at bar and that used by Wood on Railroads and Judge Thompson in his work on Negligence, and many other authorities which we shall hereafter cite, that it would hardly seem necessary to consume further time and space in this brief than to call attention to these elementary standard authorities, especially in view of the great learning and ability of Judge Thompson. Inasmuch, however, as this is the only question in the case, and the reversal of the circuit court upon this point will terminate this tedious and laborious litigation, we desire to go more fully into the authorities, and we shall cite these authorities without taking time or space to comment upon them. Railway Co. v. Hines et al., Admrs., 56 Kan., 758; Ortolano et al. v. Railroad Co., 109 La., 902; Railroad Co. v. Witherspoon, 112 Tenn., 128.
    These statements of the law, which are supported by the adjudicated cases in almost every state, show how clearly erroneous the circuit court was in its decision.. The reason they gave for reversing the common pleas court was, that it, the circuit court, believed that some one might infer from the charge of the common pleas court that more than the statutory requirements might be imposed on the company. We do not see how any one could so interpret the charge of the court. All the court said to the jury was that, in view of the fact that this crossing was obstructed, if they so found it, it then .became- the duty of the railroad company to -so operate its trains that notwithstanding such obstructions persons upon the highway by the use of ordinary care could avoid injury, and the court in the paragraph just preceding it told the jury, in terms as strong as language could make it, that there was an equal duty imposed upon the plaintiff to use care and all the knowledge which he had of the conditions of this crossing, but the circuit court held that it required something more than statutory requirements and was therefore erroneous. We insist that no such construction can be tortured from this charge. Even if it could, the charge would be strictly within the decisions cited above. . In other words, the railroad company may by its own acts and conduct impose an additional duty upon itself which has not been imposed by the legislature. The Supreme Court of Ohio makes this point clear in, 
      Railway Co. v. Schneider, 45 Ohio St., 678; Railroad Co. v. Matthews, 36 N. J. L., 531; Gugenheim, Admr., v. Railway Co., 66 Mich., 150.
    The.Supreme Court of the United States recognizes the same doctrine and states the law as it was charged by the trial court in the case at bar, and it. seems to us that the trial court is entirely right in following such a learned court. Railway Co. v. Ives, 144 U. S., 408; Railroad Co. v. Shelton, 55 N. J. L., 342; Railway Co. v. Randel, 47 N. J. L., 144.
    These authorities, and many more which may be cited to the same effect, show to a demonstration that the charge of the trial court was correct and was good law.
    As stated by the Supreme Court of the United States, the authorities are so universal upon this' proposition that we shall not áttempt to call attention to all of them, but wish in' conclusion to cite a few additional cases and text books upon this subject.
    The crossing in question was a dangerous one, rendered, so by the act of the railroad company itself in maintaining a tool shop in such a position as to obscure the view of travelers upon the highway; .the crossing was much used; the court charged the jury that the railroad compan)' as well as the travelers upon the highway was bound to use ordinary care with reference to that crossing; and no respectable authority can be found which lays down a contrary doctrine. Elliott on Railroads, Volume 3, page 1762, section 1161, page 1748, section 1156.
    There is no authority for the position taken by the circuit court. All the text-books and adjudicated cases so far as we have examined them state the opposite doctrine. Railway Co. v. Ives, 144 U. S., 408. Railroad Co. v. Price’s Admr., 76 S. W. Rep., 836; Railway Co. v. Baker, Admr., 106 Ill. App., 500 Railway Co. v. Barker, 77 Fed. Rep., 810; Harper v. Barnard, Receiver, 99 Ia., 159; Railroad Co. v. Matthews, 36 N. J. L., 531; Railway Co. v. Warren, 39 S. W. Rep., 652; Manley v. Canal Co., 69 Vt., 101; Funstoh v. Railway Co., 61 Ia., 452.
    We believe the authorities sustain-the proposition that the maintaining of this blacksmith shop, or tool house, so as to obstruct this crossing was itself negligence on the part of the railroad company. Thompson on Negligence, Volume 2, section 1507; Railway Co. v. Michalke, 90 Tex., 276.
    
      Mr. Thomas E. Powell; Messrs. Stewart & Stewart and Mr. Fred. C. Rector, for defendant in error.
    We claim in the first place, that proceedings in error are allowed and instituted for the purpose of reviewing judgments of lower courts. They are not allowed for the purpose of reviewing the reasons given by the lower courts for their judgments, if upon the whole record the judgment is correct. The plaintiff in error has not printed in this case the bill of exceptions embracing the testimony taken upon the trial. The record shows that seventeen special instructions requested by the railway' company to be given to the jury by the court with its charge were refused, and that the railwa)?- company at the time excepted.
    In other words, the record does not show that there is any merit in the claim- of the plaintiff in error here to have said judgment reversed even if it should appear that the circuit court was not right in giving the above paragraph in its general charge to the jury. In other words, it does not appear but what the judgment of the court of common-pleas should have been reversed on numerous other grounds set out in this petition in error filed in the circuit court. Holt et al. v. Lamb et al., 17 Ohio St., 374.
    An incorrect or insufficient reason for a correct ruling, decision or judgment is not ground for reversal. A reviewing court never looks in the reason given for a judgment below, but does look to see if upon the whole substantial justice has been done or a proper judgment entered. Or, in other words, before a reviewing court will reverse the judgment of an inferior tribunal it must find that prejudice appears upon the record against the complaining party, or* as the Supreme Court of Ohio stated in the case of Harman v. Kelley et al., 14 Ohio, 502, when from the whole record it appeared conclusively that the proper judgment was entered, ^ the proceeding 'will not be reversed on error even if the court mistook the law on some of the propositions discussed during the trial. This proposition of law has been so well settled in this .state that it is not now open for discussion or controversy. It is supported by the following authorities. Lessee of Ludlow’s Heirs v. Park, 4 Ohio, 5; Westerhaven v. Clive, 5 Ohio, 126; Steamboat Waverly v. Clements, 14 Ohio, 28; Laudenback v. Collins, 4 Ohio St., 251; Baird v. Clark, 12 Ohio St., 87; Courtright v. Staggers, 15 Ohio St., 511; Wood, Admr., v. Butler et al., 23 Ohio St., 520; Village of Shelby v. Boenau, 40 Ohio St., 253
    Decisions of this court on this point could be cited at much greater length, but we think the proposition is so well settled that the statement of the proposition is sufficient without further argument or authorities in support of it. Yo-cum, Admr., v. Allen, 58 Ohio St., 288; King & Uhl v. Herb, 9 Cir. Dec,, 797, 18 C. C., 41; Gensen v. Oil Co., 12 Cir. Dec., 10; McArthur Bros. v. Trust Co., 21 C. C., 654.
    In the next place we' claim the court did not err in giving that part of the charge which is relied upon here for reversal. This instruction was equivalent to telling the jury that a duty was imposed upon the defendant to give some warning other than that provided by statute, and that a failure to perform such duty would entitle the plaintiff to recover although such negligence was not charged in the petition. In other words, under this instruction the jury were led to believe that under the circumstances of the case the railway company was required to give signals other than those provided by statute, and a failure to give such signals would justify a recovery on the part of the plaintiff although the plaintiff may have been injured entirely by his own contributory negligence.
    We submit that the trial court had clearly charged the law upon, this subject in other parts of the charge and the giving of this proposition was clearly erroneous' and misleading to the jury.
    Finally we claim that the circuit court was right in finding .that the proposition of daw as given to the jury was erroneous and misleading. In the next place, even if the proposition as given to the jury was correct, still this court can not find that the plaintiff'in error was prejudiced by the judgment of the circuit court, because we insist that if the whole record had been presented to this court it would appear that substantial justice had been done to the plaintiff in error whether the single proposition of law complained of was right or wrong.
   Shaucic, C. J.

It is said that the circuit court was of the opinion that, upon the trial, the court of common pleas had committed errors other than the giving of the instruction quoted in the statement of the case, 'and that it erred in overruling the motion for a new trial upon the grounds therein stated, one of them being that the verdict was contrary to the weight of the evidence, that being a ground upon which this court would not review the judgment. The entry of judgment in the circuit court specifies the instruction quoted as the error found in the record, and states it as the sole basis of its judgment of reversal. The duty of the circuit court in the premises is plainly prescribed by Section 6709, Revised Statutes, which provides that: “All errors assigned in the petition in error shall be passed upon by the court, and in every case where a judgment or order is reversed and remanded for a new trial or hearing, the circuit court shall, in its mandate to the court below, state the error or errors found in the record upon which the judgment is founded.”

It must be presumed that the circuit court is aware of this provision of the statute and of the pertinent construction which this court placed upon it in Kramer v. T. & O. C. R. R. Co., 53 Ohio St., 436. In the performance of its plainly prescribed duty it passed upon all the errors assigned in the petition in error presented to it, and stated the instruction referred to as the only basis of its judgment of reversal. This necessarily implies that it overruled all other assigments of error though such overruling be not expressly stated in the judgment- entry.

It is further urged that not enough of the record is printed to enable us to reverse the judgment of the circuit court though we may think it' erroneous upon the ground stated. The view presented is that if the circuit court properly reversed the judgment of the court of common pleas it can not be material whether it based its judgment on a sufficient ground or not; and that the portion of the record which has been printed will not enable us to determine that the circuit court should not have rendered the same judgment because of other errors assigned there. That we could not, upon this printed record, pass upon all the errors assigned in the circuit court is obvious. But the conclusion suggested does not follow, since the reason which conducts to it is variant from recent legislation and adjudication looking to greater simplicity in proceedings in error, that being in proper recognition of their remedial character. When the statute and the decision referred to are considered in connection with the provisions of Section 6711 of the Revised Statutes that “when a petition in error is filed i-n the Supreme Court so much of the record to be reviewed as will show the error complained of shall be printed” it becomes apparent that a proceeding in error instituted here for the reversal of a judgment of the circuit court meets a prima facie presumption in favor of the regularity of the entire record in the circuit court. When the review is in a case in which that court has reversed a judgment of the court of common pleas the presumption extends not only to the grounds stated by it as the basis of the judgment of reversal, but as well to all the grounds of error assigned there which it has adjudged, whether expressly or by implication, not to be well taken. By whom should that presumption be overcome if not by him who desires that the error be made to appear? In accordance with the view suggested, if the present defendant in error desired to present here in support of the judgment of reversal which it had.recovered in the circuit court an assignmént of error which it believés to have been erroneously overruled by that court, whether the ruling was express or implied, it would have followed correct and established practice by printing and filing here within the time prescribed for filing its brief such further portions of the record as would make that error appear. Since it has not taken that course, and since the printed record which the plaintiff in error has filed presents all of the record that is material to the grounds of reversal stated by the circuit court in the entry of its judgment, the case is before us for decision upon the sufficiency of that ground.

From a consideration of familiar principles of the law of negligence illustrated in numerous cases, some of which are cited in the brief of plaintiff’s counsel, it is apparent that in such circumstances as were alleged in the petition and shown by the plaintiffs evidence the duty of a railroad company operating trains over a highway at grade is not limited to the giving of signals by bell and whistle. These signals are required at grade crossings in the open country, and the, elementary rule that the degree of care to be exercised is determined by the danger to be apprehended should require additional precaution when the crossing is in a denser population and when structures maintained near the track obscure the view of approaching trains. This view of the subject was taken by.'this court in Railway Co. v. Schneider, 45 Ohio St., 678. The rule upon the subject has been correctly stated to be that “where the surroundings are such as to render a crossing particularly dangerous it is the duty of the company to exercise care’ commensurate with the danger and especially if the company has created unusual danger at or near a crossing, it must meet such peril' with additional precautions.” But the difference between the obligation of the company thus stated and that prescribed in the instruction given in the present case is obvious. According to the instruction the company is, in such circumstances, the insurer of the safety of all who attempt to cross its tracks exercising ordinary care. The • obligation of the company “to take such .precautions to warn travelers on the public highway that notwithstanding such obstructions they by the use pf ordinary care can avoid injury,” would leave no place for accidents or such fortuitous happenings as may result from causes which would not be observed by ordinary care exercised by either or both of the parties, and which ordinary prudence would not anticipate.' Such a rule, if recognized and enforced, would make the company liable for injuries resulting from the negligence of others than parties to the ■ suit. Indeed, in such situations it would be an inexpensive and effective substitute for a policy of insurance against accidents.

Judgment affirmed.

Crew, Summers, Spear and Davis, JJ., concur.  