
    Baltimore & Ohio Rd. Co. v. Brown, Admr.
    
      (Decided November 25, 1929.)
    
      Mr. N. B. Harrington, for plaintiff in error.
    
      Messrs. Meek & Meek, for defendant in error.
   Williams, J.

The action in the court of common pleas was one for wrongful death brought by George A. Brown, the administrator of Leona Brown, deceased, to recover from the Baltimore & Ohio Railroad Company. Upon trial there was a verdict and judgment of $6,500. Plaintiff in error, the Baltimore & Ohio Railroad Company, seeks a reversal of this judgment, and assigns many errors.

On October 22, 1927, about 11 o’clock a. m., plaintiff’s decedent, a young lady, was riding as a guest in an automobile driven by one Mack Lawrence, a young traveling salesman. Tbe automobile was struck by a train of tbe defendant railroad company at the point where tbe track crosses Rustaboo street in tbe village of Haskins, and both occupants were killed. Tbe evidence is conflicting as to bow tbe collision happened. Plaintiff adduced evidence tending to show that tbe automobile was driven upon tbe track, and stalled there, and that plaintiff’s decedent was trying to get out and open tbe door, and “worked it back and forth,” and “turned sideways,” and that tbe train came on without slacking its speed and struck tbe auto.

Plaintiff in error claims that tbe court erred in refusing to direct a verdict, first, because tbe evidence does not show that tbe defendant was negligent in failing to keep tbe crossing in a reasonable condition of repair; and second, because the decedent was guilty of contributory negligence as a matter of law.

There was evidence tending to show that tbe emergency brake was not applied until just as tbe locomotive bit tbe automobile, and there is also testimony to show that as tbe car stalled on tbe track tbe train was just coming out of Hull Prairie, which was distant about three-quarters of a mile from tbe crossing, and that the train in fact did stop in about 1,200 feet.

At defendant’s request the court submitted to tbe jury the following interrogatory:

“Did tbe engineer discover or in tbe exercise of due care could be have discovered that tbe car in which Leona Brown was riding was stalled upon the track in time to stop the train at the speed at which the train was going, so as to avoid the collision?”

The jury answered this interrogatory in the affirmative, and there was evidence which warranted the jury in so doing, if it saw fit. It is thus evident that the jury found the defendant guilty of negligence regardless of the condition of repair of the crossing.

It would have been error for the court to direct a verdict for the defendant on the ground that the evidence did not tend to show actionable negligence on its part.

It is claimed, however, that plaintiff’s decedent was herself guilty of contributory negligence as a matter of law. With this contention we cannot agree. She was a guest riding in the seat with the driver. If the jury found that the driver was guilty of negligence in going upon the track, that negligence would not be imputed to a guest, under the law of Ohio, and, while she was bound to exercise ordinary care for her own safety at all times, the extent to which she could, in the exercise of ordinary care, rely upon the driver, and the extent to which she should watch for an approaching train, and warn the driver in the exercise of such care, were questions of fact for the consideration of the jury. Whatever the skill or experience or knowledge of the driver may be, there is a chance that to speak to him or advise him what to do may involve more danger than to maintain silence and not interfere. The inference might arise in the instant case that the automobile stalled on the track, and that, if it had not done so, it would have passed over in safety^ If the automobile did so stall, it could hardly be said that the driver was guilty of negligence himself in going upon'the track, for, if the train was in fact about three-quarters of a mile away, he could have gotten over. If the driver were not himself guilty of negligence in that respect, it could hardly be said that the guest was. As to the action of the plaintiff’s decedent after the car got upon the track and stalled, as claimed by plaintiff below, evidence was adduced by the plaintiff tending to show that she was endeavoring to get out of the car, and the evidence is such as to give rise to the inference, if the jury saw fit to draw it, that the door stuck and she was unable to get out. We think the question whether plaintiff ’s decedent was guilty of contributory negligence was a question of fact for the determination of the jury.

The fact that the plaintiff’s decedent was familiar with the crossing was a fact properly submitted to the jury, but we do not believe that it is of controlling importance on the question of contributory negligence as a matter of law.

It follows from what we have said that the court did not err in refusing to direct a verdict.

Plaintiff in error claims that the court erred in giving plaintiff’s requests to charge before argument. There were five such requests, and all of them, with the exception of No. 1, accurately state propositions of law germane to the issues involved. No. 1 reads as follows:

“I charge you as a matter of law, that Section 8843 of the General Code of Ohio provides, in part, as follows: ‘ Companies operating a railroad in this state, shall build and keep in repair good and sufficient crossings over or approaches to such railway, its trains, side-tracks and switches, at all points where any public highway, street, lane, avenue, alley, road or pike is intersected by such railroad, its tracks, side-tracks or switches.’ ”

It is claimed that this request raises the question whether or not in failing to keep its crossing in repair, in accordance with Section 8843, General Code, a railroad company is. guilty of negligence per se. We do not pass directly upon the question, for the reason that we do not feel that it is squarely raised by the record. There was no objection or exception noted at the time these requests were submitted to the jury, but the record discloses that they were first read to the jury, and then several requests of the defendant were read; and, after the reading of the latter, the following statement of counsel for the railroad company appears: “Note exception to plaintiff’s requests.” The exception was to the giving of the entire series and was too general in its terms to make it available in a reviewing court. Coal & Mining Co. v. Admr. of Clay, 51 Ohio St., 542, 38 N. E., 610, 25 L. R. A., 848.

Several interrogatories other than the one above quoted were submitted to the jury and were answered, “We do not know.” The court, in charging the jury, had instructed it that it might answer these questions “Yes” or “No” or “We do not know,” as the case might be. Under Section 11463, General Code, the court is not required to submit interrogatories at the request of a party unless questions are propounded which require answers which establish ultimate material facts, and not merely evidential facts, or which establish probative facts from which an ultimate material fact may be inferred as a matter of law. Mellon, Dir. Genl. of Rds., v. Weber, 115 Ohio St., 91, 152 N. E., 753. The interrogatories which were answered “We do not know” were all of such a nature that the trial court was not required to submit them to the jury. All the questions were such as could be answered categorically, and, whether answered in the affirmative or negative, the answers would have no controlling effect upon the rights of the parties, nor could they control the general verdict.

The court in its general charge did not instruct the jury that a violation of Section 8843, General Code, in failing to keep the crossing in reasonable repair, would constitute negligence per se, and a close examination shows that the principles given to the jury in the general charge are in accordance with established law. •

The verdict is not manifestly against the weight of the evidence, and we do not find error in the record prejudicial to plaintiff in error. For the reasons given, the judgment will be affirmed.

Judgment affirmed.

Lloyd and Richards, JJ., concur.  