
    Meek v. The Pennsylvania Company.
    1. In an action to recover for an injury alleged to have been caused by cars moving on a railroad track, proof that the company was moving its cars in violation of a city ordinance at the time the injury was inflicted, while not sufficient per se to create a liability, is yet competent to go to the jury as tending to show negligence.
    2. In such an action, where the circumstances necessarily impose upon the injured party the exercise of proper care for his own safety, and when in the exercise of such care there is no apparent danger from moving cars, proof of such an ordinance is competent as reflecting on the degree of care required of him to avoid injury.
    3. Where injury is caused by a failure of the railroad company to use ordinary care in moving its trains or cars, it is liable, unless there be contributory negligence by the person injured. Hence it is error to charge the jury that the company is liable only for gross neglienae, where it may have been understood by the jury that this term was used as the equivalent of fraud or intentional wrong, and not as meaning the want of the ordinary care required under all the circumstances of the case.
    Error to the District Court of Belmont county.
    This was an action to recover damages for causing the death of George W. Meek. The allegations . of the petition, which were in issue, were, that the defendant by wrongful act, neglect and default, and without his fault, caused the death of Meek, while he was walking on the railroad track in the city of Bellaire. The injury was caused by two gondola ears, which were detached from the train, and were moving south on a side track, in charge of a brakeman. These cars had been part of a train that was coming down the main track from the-north, but, some distance above, had been detached, and turned on the side track at a switch, while the locomotive and other cars continued on the main track. These two cars were moving by their own momentum.
    The plaintiffs evidence tended to show that when deceased entered upon the side track no train was visible, though the view of the track was unobstructed for half a mile ; that these detached cars were moving at a dangerous rate of speed, exceeding eight miles per hour; that deceased was north of and near a public crossing which people were in the habit of using; and that these detached cars moved at this dangerous rate of speed against deceased, and so continued beyond the public crossing, before the brakeman could get them under control.
    On the trial the plaintiff offered in evidence an ordinance of the city of Bellaire, which forbids trains moving at a higher rate of speed than eight miles per hour, and also forbids trains of cars and sections of trains, from crossing any street or crossing within the limits of the city, without sufficient motive power attached to start and stop the same without delay. The court rejected this evidence, and plaintiff excepted.
    ■ The parties having offered evidence tending to support the issue on their respective parts, the case was submitted to the jury under the charge of the court.
    Exceptions were • taken by plaintiff to the charge, and to the refusal to charge.
    The judgment in favor of defendant was affirmed in the district court.
    The charge of the court touching the degree of care the defendant should use under the circumstances of the case, and the liability of the deceased for contributory negligence, to which the plaintiff excepted, is as follows:
    “ The court will say to you as the law that will govern you in your deliberations in this case, that if you find that the agents and servants of said railroad company were guilty of any wrongful act, neglect or default, or in other words, were guilty of gross negligence which occasioned the injury, then the plaintiff would be entitled to recover in this action; but if the undisputed facts satisfy you that by the exercise of ordinary care on the part of the decedent, he might have avoided the accident, then in such case the plaintiff cannot recover in this action.
    
      “ If you find that the decedent, when the accident occurred, was on the track of the defendant’s road, that his being there, away from a public or a private crossing, required of him the due exercise of care on his part, and in such case the jury, in determining the question of contributory negligence, will pass upon all the testimony that has been given before them.
    “ It was the duty of decedent, in the place he was walking, on the track of the company, to make use of his senses to ascertain if there was a train in the vicinity, and if, when in full possession of his faculties, he failed to see or hear the approaching train when a prudent man exercising his senses and using his eyes and ears with ordinary care would have discovered a train in close proximity, and he was thereby injured, he is guilty of such negligence as will prevent a recovery in this action. The omission to ring the bell or sound the whistle at the time would not have been sufficient to authorize a recovery, if decedent, notwithstanding such omission, might by the exercise of ordinary care, have avoided the accident.”
    At the same time, the court refused to give the following request, among others, except so far as this proposition was included in the charge, to wit:
    “If the jury shall find from the testimony that the plaintiffs intestate was guilty of negligence in going upon the track, yet that the defendant, by the use of ordinary care, under the circumstances, could have avoided the injury, the negligence of plaintiff’s intestate in going upon the track will not prevent a recovery.”
    
      Rees & Gallaher, for plaintiff in error:
    "We submit that the court erred.
    I. First in ruling out the ordinance, for, without multiplying authorities, “ In an action to recover damages for alleged negligence, proof of the violation of a city ordinance does not establish negligence per se; it is competent evidence upon the question to be submitted to the jury, but not conclusive.” Knupfle v. K. Ice Co., 84 N. Y. 488; 32 Ohio St. 494, 499; 29 Md. 253; 111 Mass. 136, 138, 140; 63 N. Y. 523, 530; 64 N. Y. 521, 525, 531-533.
    II. In the charge as given, in the following particulars:
    Making the liability of the defendant depend on its being guilty of gross negligence. 37 Ohio St. 312; 28 Ohio St. 388. Requiring of the decedent “ extraordinary efforts ” to avoid the accident in case the jury should find he had been warned of the approach of the train. 8 Ohio St. 570; 24 Ohio St. 631. And, generally, in not making the care and negligence on the one side and the other dependent on the circumstances of the case.
    III. In refusing to charge as requested. We respectfully submit that it was the duty of the court, whén asked in this cause, to have called the attention of the jury directly to the relative duties and rights of the plaintiff’s intestate and the defendant in the circumstances. If the track of the defendant was habitually used as a thoroughfare, the agents and servants of the defendant were bound to take notice of it and use a precaution commensurate with it. Wharton on Negligence, 352, in notes, 651, § 388, n. 3. That the plaintiff’s intestate was a trespasser did not absolve the defendant from the use of ordinary care under the circumstances to avoid the injury. Wharton on Neg. 309, § 348, 388 ; 2 Redf. on Railways, 246. That the negligence of the plaintiff’s intestate must be the proximate cause of the injury to prevent a recovery, is settled. 3 Ohio St. 172: Wharton on Neg. §303. The negligence to bar a recovery must be not a condition of the injury, but its juridical cause. Wharton on Neg. § 323; Id. § 388, in notes. The fifth instruction, we respectfully submit, states only what should be a conclusion of law, if the facts should be found as stated. Wharton on Neg. 670' in notes, citing 21 Wis. 256. See Whart. on Neg. 668, citing Ill. Cent. R. R. v. Bachles, 56 Ill. 379; § 798, n. 2. “ Eor a railroad to make what is denominated a ‘ running switch ’ over the crossing of the track by a public road, in the populous part of a village, is, of itself, an act of gross and criminal negligence on the part of the company.” 32 N. Y. 597; Brown v. N. Y. C. R. R. cited in Lacey’s Digest, 474, § 300.
    
      J. B. Smith, for the defendant in error:
    As to negligence. 83 Ill. 510; 46 Ill. 82; 52 Ill. 325; 64 Ill. 510; 81 Ill. 45; 70 Ill. 106; 87 Ill. 222; 46 Ind. 239; 33 Ind. 307.
    As to contributory negligence. 39 N. Y. 358; 40 Ill. 218; 
      Booth v. Hodgson, 6 T. R. 409; Penna. Co. v. Rathger, 24 Ohio St. 66; Railroad v. Picksley, Id. 655; Davis v. Railway, 47 N. Y. 400; Railroad v. Methoven, 21 Ohio St. 586; Gorten v. Railroad, 45 N. Y. 664; Arts v. Railroad, 34 Iowa, 154; Railroad v. Terry, 8 Ohio St. 585; Wharton on Negligence, § 384; Railroad v. Elliott, 28 Ohio St. 340; B. & O. R. R. Co. v. Whitacre, 35 Ohio St. 627; 1 Hilliard on Torts, 140, 141; 2 Redfield on Railways, 200; Illinois Central R. R. Co. v. Godfrey, 59 Pa. St. 129; 10 Allen, 373; 14 Allen, 429; 44 Pa. St. 375; 14 Am. L. Reg. 290; Owing v. Jones, 9 Md. 108; Dyer v. Talbott, 16 Ill. 300; Railroad Co. v. Hiatt, 17 Ind. 102; Carsby v. Perysene, 21 Pick. 255; Parker v. Adams, 12 Met. 417; Amos v. Railway Co., 6 Gray, 64; 1 Allen, 190; 8 Allen, 137; 21 Barb. 339; 18 N. Y. 466; 4 McLean 333; 18 Ohio 398; 22 Ohio St. 9-21-22; 1 Cowen, 78; 6 Hill 592; 19 Wend. 339; 6 Cowen, 184; 5 Hill 282; 27 Barb. 221, 534; 5 Barb. 338; 13 Barb. 9; 25 Barb. 600; L. R. 1 Ex. 13; 49 Pa. St. 60.
    As to speed of train being faster than allowed by city ordinance. 22 N. Y. 191; 19 Wis. 489.
   Johnson, J.

I. As to the admissibility of the ordinance. It contained two provisions: 1st. It prohibited a greater rate of speed than eight miles per hour; 2nd. It prohibited trains, or sections of trains, from crossing public streets or crossings without sufficient motive power attached to control them. The evidence tended to show that deceased was injured by these detached cars, while moving at a forbidden rate of speed, and that these detached cars were not under sufficient control at the time the injury was inflicted, and when they crossed the street, to stop or start them without delay.

As the injury complained of was done while deceased was walking on defendant’s track, he, as well as the defendant, was charged with active duties for his own preservation. If he omitted these duties, and such omission contributed to the injury, he could not recover, unless such omission was without his fault. His position required great care for his own safety, and the evidence, tending to create a liability against the railroad, necessarily involved the question of proper care on his part. His action in going upon the track immediately preceding the injury, put in question his due exercise of care for his own safety. In such a case the burden is on the plaintiff to show he exercised such care. Railroad Co. v. Whitacre, 35 Ohio St. 627; Robinson v. Gray, 28 Ohio St. 241; Waters v. Wing, 79 Pa. St. 211.

In the absence of knowledge of apparent danger from an approaching train, or that these detached cars were moving toward him, and were about to cross the public street near which he was, without sufficient motive power to control them, the deceased had the right, having used due caution in going upon the track, to act on the assumption that the defendant would conform to the requirements of the ordinance.

It was the duty of the deceased, if he went on defendant’s track, to look out for approaching trains, and the violation of the ordinance by the railroad agents would not relieve him from this duty; but in the absence of apparent danger, the deceased may not have been guilty of contributory negligence, if he was lulled into security by knowing of the regulations prescribed by the ordinance, and by assuming that the company would exercise such care. Correll v. B. C. R. & M. R. R. Co., 38 Iowa, 120; Jetter v. N. Y. & H. R. R. Co., 2 Keyes (N. Y.) 454; Baker v. Pendergrast, 32 Ohio St. 494.

This ordinance was admissible as reflecting upon the question of the care exercised by the deceased in view of the fact that the defendant was guilty of an act forbidden by an ordinance, which he had no reason to anticipate. Again, proof that defendant was violating this ordinance, was in its nature evidence tending to show defendant’s liability, where the injury resulted from not observing it. The statute gives a right of action where death is caused by wrongful act, neglect or default, — in other words, for an injury negligently or intentionally caused.

While the violation of a law or ordinance is not, per se, conclusive proof of negligence that will render the company liable, yet it is competent to be considered with all the other evidence in the case. The ordinance was enacted for the purpose of rendering the streets more safe and convenient for the public. It is a police regulation defining what is a legitimate use of the streets by the railroad company. It was a command to those operating trains within the city limits which it was their duty to obey, and a disobedience, either willfully or negligently, resulting in injury, is some evidence to be considered in determining the defendant’s liability. It served to give character to the act causing the injury. McCarthy v. Wolfe, 40 Mo. 520; Lane v. Atlantic Works, 111 Mass. 136; St. Louis & S. E. Railway Co. v. Mathias, 50 Ind. 65; B. & O. R. R. Co. v. State, 29 Md. 252; McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 522; Haas v. Ch. & N. Railway Co., 41 Wis. 50; Correll v. B. C. R. & M. R. R. Co., 38 Iowa, 120; Balt. City Pass. R. v. McDonnell, 43 Md. 534; Wabash R. R. v. Henks, 91 Ill. 406.

II. Did the court err in charging, and in refusing to charge, as appears in the statement of the case ? The charge uses the term, “ gross negligence,” as the measure of defendant’s liability. Whether this implies more than a want of ordinary care, is not clear if we consider the charge by itself. When taken in connection with the refusal to give the third request of the plaintiff, the meaning of the judge becomes clear.

That request was to charge, that if the defendant, by the use of ordinary care under the circumstances, could have avoided the injury, the negligence of the deceased in going upon the track would not prevent a recovery. By refusing this, it is implied, that the defendant is not liable for want of ordinary care.

What is the meaning of the term “gross negligence?” Whether it is synonymous with the term “ want of ordinary care,” or equivalent to fraud or intentional wrong, is not easily ascertained from the books.

This subject is discussed in Wharton on Negligence, chap. 11, §§ 26-50, and in Telegraph Co. v. Griswold, 37 Ohio St. 311, 312, and in the cases cited.

If the charge stood alone, we might conclude, in accordance with the current of the later cases, that the term gross negligence meant only want of ordinary care, “ with a vituperative epithetyet taken in connection with other parts of the charge, and the refusal to charge, that if the defendant, by the use of ordinary care, could have avoided the injury, it was liable, notwithstanding the deceased was negligent in being upon the track, it is evident that the judge meant by the use of this term, the equivalent of fraud or intentional wrong. This meaning is supported by high authority. Jones on Bailments, 8-46, et seg. In this sense it was not the measure of liability.

It is insisted, however, that plaintiff has not been prejudiced, as the facts show there was no right of recovery. This does not appear upon the record. We have not got the evidence, only what it tends to prove. In such case, where there is error in the rejection of evidence, or in the charge of the court, it will be presumed that it was prejudicial to the losing party.

Judgment reversed.  