
    No. 614
    TOLEDO RAILROAD CO. v. HUGHES
    No. 19841.
    Supreme Court
    On motion to certify.-
    Dock. May 25, 1926.
    923. PLEADING — Where in a damage suit for personal injuries received as a result of an alleged negligence the defendant files an answer avering contributory negligence on the part of a plaintiff and the plaintiff files no reply thereto may the court direct a verdict on the pleadings?
    Attorneys — Frasier, Hiett, Wall & Effler, Toledo-, for Pltf.; Thursten & Riehm, Toledo, for Deft.
   This action was brought originally in the Lucas Common Pleas by Lorus W. Hughes against Toledo Terminal Railway Company for damages for personal injuries caused by the alleged negligence of the company.

It appears that Hughes while driving his automobile in the night time in a fog ran into a freight train which blocked a crossing, Hughes alleged negligence on the part of the company by failing to warn him of the blockade. The company filed an answer denying negligence on its part and specifically alleging contributory negligence on the part of the plaintiff, to which Hughes filed no reply.

The judgment of the Common Plea's in directing a verdict for the company on the pleadings was reversed by the Appeals and the cause remanded for a trial.

The company in the Supreme Court contends :

1. That Hughes in alleging knowledge of the crossing, a log and that he drove his machine at night into the freight train was such negligence as would bar a recovery.

2. That the failure of Hughes to file a reply to the answer alleging contributory negligence entitled the company to a directed verdict.  