
    Baltimore and Ohio Railroad v. Thomas Whittaker.
    In an action to recover for an injury on the ground of negligence, although the court charge the jury that the plaintiff can not recover if his own negligence contributed to the injury, yet, in connection with such charge, so instructed the jury that they might reasonably believe that this rule only applies when the defendant is not negligent, such charge is misleading, and a judgment for the plaintiff based thereon should be reversed.
    Error to the District Court of Belmont county.
    The original action was brought by the defendant in error against the plaintiff in error, to recover damages for injuries alleged to have been sustained by the plaintiff, by reason of the negligence of the defendant. .
    The, petition alleged that on the 26th day of February, 1869, the plaintiff, when crossing the defendant’s railroad, at a place where a public road crosses the track, was struck by the defendant’s locomotive and greatly injured; that there was no sign-board at the crossing, where he received the injury, warning travelers to look out for cars ; that at the time of the collision neither the bell of the locomotive was rung nor the whistle sounded by the defendant; and .averred that the injuries received by the plaintiff were occasioned by the negligence of the defendant, its agents and servants, in failing to erect such sign-board, and in failing to ring the bell or sound the whistle at the said crossing.
    The answer of the defendant denied that the injuries to the plaintiff were caused by the negligence of defendant, its agents or servants, but averred that they were caused by the negligence of the plaintiff’, in driving on the railroad tra'ck in a negligent and careless manner. To this answer the plaintiff replied, denying that he was negligent.
    The following facts appear from the record :
    At the crossing where the collision occurred, the public road runs nearly north and south, and the railroad track east and west, and there are two other crossings east, one ■about 400 and the other 800 yards from this one — the same road crossing the railroad track three times. As the road approaches this crossing where the accident occurred from the south, the grade is descending for about 1,000 feet before reaching the track; about 200 feet from the crossing, the road divides into two tracks, one being on much higher ground than the other, and from the lower track the railroad east is obscured from view for a short distance, by a bank on the east side of the road; but from the other track there is no such obstruction.
    On the lower track, at a point 130 feet south of the crossing, the railroad east can not be seen at any point except at the crossing, and approaching from this point the track east comes gradually into view. At a point 40 feet south of the crossing, an engine can be seen by a person in a sled 164 feet east on the railroad track. At 30 feet south of the crossing, the engine can be seen 343 feet east; and when the horses’ heads are four feet from the south rail, the engine can be seen 800 feet east.
    On the day of the accident, Whittaker was traveling with a sled and horses, on this road, approaching the crossing from the south, riding in the sled and driving his horses, and when the sled was on the railroad track and just as the horses stepped off the north side, the sled was struck by an, engine attached to a passenger train, which was approaching the same crossing from the east. The sled was broken to pieces and Whittaker received serious injuries, the horses-escaping uninjured. At the time of the accident there was-no sign-board at the crossing, warning travelers to “ look out for the locomotive;” but Whittaker-testified that he had been traveling over the road for more than twenty years, and was perfectly familiar with the crossing, and that such sign-board would have given him no information, with which he was not already familiar.
    Whittaker also testified that he had no recollection of what oecui’red as he approached the crossing until he was-on the track and saw the engine coming toward him, and therefore could not say whether he was careful or not, or whether he looked for the train or not, or whether he took any other precaution.
    The only witnesses who saw the accident were John H.. Caten and Lydia Caten, witnesses for the plaintiff, and Geo. Hahn, the fireman, witness for the defendant.
    The Catens testified that they were directly north of the-crossing, about 150 yards, and Whittaker was coming toward them; that he came down the hill on a trot, and came-on the track without stopping or taking any precaution in reference to the train, so far as they could see; though-they could not see him, but could see his horses.
    Hahn testified that he saw Whittaker drive his horses out from behind the bank and on the track, and that he did not look either way, but was looking straight ahead at his horses.
    William Sherwood testified that shortly after the accident, Whittaker, while in a partially unconscious condition, said repeatedly, “ Oh, I forgot all about the railroad.” •And Francis Davis and Wm. Stanton testified that he had said to them more than a year after the accident, “that for' some unaccountable reason he had forgotten all about the railroad on the day of the accident.”
    The testimony tended to show that the whistle was not; sounded at the crossing, and that the train was running at an unusual rate of speed.
    After the testimony was all in and before the case was. ■-submitted to the jury, the court instructed the jury as follows:
    “ The first question you will consider is this, was there ■negligence or want of ordinary care on the part of the defendant, or its agents or servants, in running and managing the train which inflicted the injury on the plaintiff, at ■the time the injury was inflicted, and upon this question the burden of proof is upon the plaintiff. He must satisfy you by a preponderance of testimony of such negligence, or he can not recover; and upon this question you may look to all the testimony and all the circumstances, brought to your notice during the investigation of this case.
    “ And if the plaintiff shall satisfy you by a preponderance of testimony, that there was negligence or want of ordinary care on the part of the defendant, and that the plaintiff has not been guilty of negligence or want of ordinary care, as proximately contributed to the injury, then he will be entitled to recover.
    ' “ The question that will .next claim your attention is presented in the answer of the defendant, and this is, whether the injury was occasioned by the gross negligence of the plaintiff, or whether the plaintiff has been guilty of ■such negligence, or such want of ordinary care, as contributed to the injury complained of.
    “ If, by the gross negligence of the plaintiff the injury was inflicted, or by the negligence of the plaintiff, or by such want of ordinary care, he proximately contributed to the injury, while the defendant was in the exercise of ordinary care, in the dis&harge of its duty in the running its train, the plaintiff can not recover.
    “These questions submitted to you are questions of fact, which you must determine from the testimony in the case, and from all the circumstances of the parties at the time ihe injury was inflicted, as you learn them from the •testimony.
    “While you are deliberating upon these questions, I submit to you the following rules of law, which will govern you in your deliberations, in determining these questions, ■whether the injury was occasioned by the negligence of the defendant, or his want of ordinary care, or whether the plaintiff by his gross negligence, or want of ordinary care, contributed to the injury.
    “1. The right of the public to travel along a public high-' way at a railroad crossing, is equal to that of the railroad' company to the crossing. The railroad company has no-' superior right or preference in such case. It is the duty of both the company and the public to use ordinary care te avoid accidents and collisions at such crossings.
    
      “2. Ordinary care means that degree of care which persons of oi’dinary care and prudence are accustomed to use and employ, under the same or similar circumstances, in order to conduct the enterprise in which they are engaged, to a safe and successful termination, having due regard to-the rights of others and the objects to be accomplished.. Ordinary care has therefore not only an absolute, but also a relative signification. It is to be such care as prudent persons are accustomed to exercise under the peculiar circumstances of each case. If called on to exercise under circumstances of peculiar peril, a greater amount of care is-required than where the circumstances are less perilous. The amount of care is increased, but the standard is still the same. It is nothing more- than ordinary care under the-circumstances of that particular case. The circumstances,, then, are to be regarded in determining whether ordinary care has been exercised.
    ■ “ 8. Where railroad companies cross highways upon the same level, ordinary care- requires that the cars should be run with much more caution than upon a road occupied' exclusively by the company. In such cases of crossing public highways, it is the duty of the company to so regulate the speed of their trains, and to give such signals to-' persons passing, by blowing a whistle or ringing a bell, or-both, and by establishing warning sign-boards, as the circumstances may require, that all may be apprised of the danger of crossing the track. And in cases of crossings of peculiar clanger, it may become the duty of the company to take additional precautions.
    “ The amount of caution of the company is to be precisely apportioned to the reasonable requirements of the place and circumstances, and if the company fail to meet any of these reasonable requirements, it is responsible for the injury that results from the failure.
    “ 4. The general rule is, that the plaintiff must have exercised ordinary care; and if he, by his ordinary negligence, proximately contributed to produce the injury, he can not recover, unless the defendant was guilty of gross negligence. And there is this further exception to the general rule: If, after defendant became aware of the danger of the plaintiff, or should, in the exercise of ordinary care, have become aware of the danger, the defendant neglected to use a proper degree of care to avoid injuring the plaintiff, the defendant in such case would not be excused, but would be liable for the injury.
    “ 5. If you find that plaintiff was guilty of negligence, but that such negligence on his part was but slight, or that it contributed but remotely to the injury, such slight or remote negligence will not excuse defendant, if defendant has been guilty of ordinary negligence.
    “ 6. If plaintiff was on the track by his own neglect, it still remains the duty of defendant to use ordinary care to avoid injuring him; and if a person is seen upon the road, it is the duty of the engineer to check his train and do his best to avoid a collision.
    “ 7. Railroad companies have no right to run their trains upon the assumption that travelers upon a highway which a railroad crosses will always be prudent and careful. Ofi the contrary, such companies have good reason to presume that persons crossing the highway will frequently be negligent, and therefore they should, in view of such a well-known fact, observe the greater precaution.
    “ If a train approaches a highway at such speed as clearly to imply a willingness to inflict injury, the company will be liable even to a person wbo may be negligently on tbe track.
    “ 8. The question as to whether the plaintiff took ordinary precaution before crossing, and as to whether he listened or looked out for the cars, so far as it was reasonably within his power to do so, is a question of fact for the j ury; and if there was an omission on his part, the question as to whether it was culpable or not, is also a question of fact for the jury, to be determined by the jury from all the circumstances of the case. In determining these questions in this case, you will consider all the circumstances; and the disposition of men to take care of themselves and keep out of difficulty may properly be taken into consideration by the jury in this connection.
    “9. Negligence by plaintiff is set up as a defense by defendant, and it must be proved affirmatively by defendant, or inferred from the circumstances of the case.
    
      “ 10. If, then, you find from the evidence, that plaintiff'was injured by reason of the negligence of defendant or its agents, unless you are satisfied from the evidence that plaintiff was himself guilty of ordinary negligence, you will find a verdict for plaintiff', and will assess such damages in his favor as the extent of his injuries, and the other circumstances of. the case entitle him to receive.”
    To these instructions the defendant excepted.
    The jury returned a verdict for the plaintiff, and judgment was rendered accordingly. The District Court, on error, affirmed the Common Pleas. To reverse this judgment is the object of the present petition in error. The error relied on is that the court misled the jury.
    
      J. H. Collins, attorney for plaintiff in error:
    The burden of proof was on the plaintiff' to show that he was careful. 1 Hilliard on Torts, 140, 141; 2 Redfield on Railways, 200; Booth v. Hodgson, 6 Term, 409; Merrill v. Hampden, 25 Maine, 234; Dickey v. Maine Tel. Co., 43 Ib. 492; Owings v. Jones, 9 Md. 108; Dyer v. Talbott, 16 Ill. 300; The Evansville and Crawfordsville R. R. v. Hiatt, 17 Ind. 102; Park v. O’Brien, 23 Conn. 339; Lane v. Combe, 12 Pick. 177; Adams v. Carlisle, 21 Ib. 146; Carsby v. Perysene et al., 21 Ib. 255; Parker v. Adams, 12 Met. 417; Amos v. New Bedford Railroad, 6 Grey, 64; Galagon v. Boston and Lowell R. R. Co., 1 Allen, 190; Wilson v. Charlestown, 8 Allen, 137; Spencer v. Utica and Leb. R. R. Co., 5 Barb. 338; Sheffield v. R. & S. R. R., 21 Barb. 339; Butler v. Hudson River R. R. Co., 18 N. Y. 466; Beardsly v. Swan, 4 McLean, 333; 18 Ohio, 398; 22 Ohio St. 9, 21; 1 Cowen, 78; 6 Hill, 592; 19 Wend. 339; 6 Cowen, 184; 5 Hill, 282; 27 Barb. 221, 534.
    
      Johnson v. Hudson River R. R., 5 Duer, 21, referred to in Sherman & Redfield on Negligence, 44, is overruled in 26 N. Y. 67.
    A party approaching a railroad crossing must exercise the organs of sight and bearing, to ascertain if a train is .approaching, and if he omits so to do, and is injured by reason of a collision with a train which is approaching, he ■is guilty of such negligence contributing to the injury, as will prevent a recovery from the railroad conrpany, although the railroad company may have been negligent, also, in •approaching the crossing.
    Authorities to sustain this proposition, and the proposition that the negligence in such case (where the evidence is not •contradictory) is a question of law for the court, are abundant. The following are some of the leading cases on this subject: 2 Redfield on Railways, 200; 5 Barb. 338; 13 Barb. 9; 21 Barb. 342; 25 Barb. 600; 27 Barb. 221, 528; 18 N. Y. 423; 24 N. Y. 430, 531; 29 N. Y. 315; 39 N. Y. 61; 41 N. Y. 295; 38 N. Y. 440; 47 N. Y. 400; Telfer v. Northern R. R. Co., 30 N. J. 188; 13 Ill. 548; 16 Ill. 198; 22 Ill. 264; 29 Ill. 447; The Bellefontaine R. R. Co. v. Hunter, 33 Ind. 335; 10 Allen, 532; L. R., 1 Ex. 13; 49 Penn. St. 60; 8 Ohio St. 585; Trow v. The Vermont Central R. R., 24 Vt. 479; Penn. R. R. Co. v. Beale, 73 Penn. St. 504.
    A high rate of speed at a crossing is not a fault which renders the railroad liable for an injury occurring at such a place. The law places no restrictions on the rate of speed. 44 N. Y. 465.
    A failure to ring the bell or sound the whistle is neither gross negligence nor culpable negligence. It is simply and only negligence. 33 Ind. 344; 15 Ill. 198; 22 Ill. 264; 29 Ill. 447.
    There was no question of remote or proximate negligence' in the case; if "Whittaker was guilty of any negligence it was proximate, because it occurred at the time of the accident.
    It is clearly error in a court to charge a jury upon a supposed or conjectural state of facts of which no evidence^ ' has been offered. 20 How. 254; 14 Wall. 447.
    
      St. Clair Kelly and D. D. T. Cowen, attorneys for defendant in error:
    Negligence on the part of the defendant must be proved by the plaintiff’. Negligence by the plaintiff is matter of defense to be proved by defendant, yet it may be inferred by the jury from the facts and circumstances. Sherman & 'Redfield on Negligence, sec. 44, and authorities there cited-
    There is no legal presumption of negligence, but the contrary. 2 Redfield on Railways, 11, note, 5th ed.; Ib. note 20, p. 253, top paging.
    The question of negligence by plaintiff as well as defendant, is a question to be determined from all the facte and circumstances bearing upon it. It is not to be determined from' a part of the facts. Pierce on Railways, 282, and cases there cited; Railway v. Whitton, 13 Wallace, 270,
    The rule in Trow v. Vermont Central R. R. Co., 24 Vt. 497, can not be regarded as good law. Pierce on Railways, 284, note 1; 27 Vt. 49; Sherman & Redfield on Negligence, 487, notes 4 and 5, and eases cited; 1 Redfield, 571.
    If the bell is not rung or the signal sounded, the traveler is justified in supposing that no engine is approaching within a quarter of a mile on either side of the crossing, and if he is misled by the failure to ring the bell or sound the whistle, and suffers an injury, the party in fault must respond in damages. S. & R. on Negligence, secs. 28, 31; Ib. 485, 488, note; Beseigel v. New York Central R. R., 34 N. Y. 622; 1 Redfield on Railways, 570.
    "Where the negligence of plaintiff-is relied upon to defeat his recovery, he must have been guilty of at least ordinary negligence. S. & R. on Negligence, secs. 28, 29; see also sec. 25; 1 Redfield, 571.
    Plaintiff is not barred unless his fault is of the same-nature, and of as high a degree as that of defendant. Kerwhacker v. Railroad Company, 3 Ohio St. 172; Timmons v. Central Railroad Company, 6 Ohio St. 108; Pendleton Street Railroad Company v. Stallman, 22 Ohio St. 20.
    The right of a railroad company to the crossing of a-public highway, is not superior to that of the public. The rights are equal; and it is the duty of both to use ordinary care. S. & R. on Negligence, sec. 481; Pittsburgh R. R. Co. v. Maurer, 21 Ohio St. 421.
    The charge of the court to the jury was in substances Was defendant guilty of ordinary negligence which caused the injury, and had the plaintiff himself exercised ordinary care ? That it was the duty of both parties — plaintiff as-well as defendant — to use ordinary care at the crossings, to-avoid accident and collision. And this was correct law. 8 Ohio St. 584; 13 Wallace, 270; S. & R. on Negligence, secs. 480, 483.
   Day, O. J.

Where, upon a question of negligence, the facts are disputed, and the proper inference to be drawn-' from the facts is doubtful, the case is peculiarly one for the determination of a jury, under 'proper instructions of the court. We do not, therefore, deem it advisable for us-to pass upon the doubtful question urged upon us, as to-whether the jury were warranted by the evidence in finding a verdict for the plaintiff below. We are relieved front this, for we regard the charge of the court to the jury so far misleading in its general scope and character upon a material point, as to endanger a correct .finding upon the-facts by the jury.

The trouble arises, iu part, from following a practice, too •common, of laying down general propositions, though they ■■may be abstractly right, in such a manner as, when applied to the particular case, tend to embarrass rather than aid the jury in arriving at a correct conclusion.

It is true the jury were told, in substance, that to entitle the plaintiff to recover, he must be without fault himself, :and must prove that he received the injury by reason of the negligence of the defendant. Still the case was so given to them that they might feel warranted in finding for .plaintiff, whatever'his fault might have been, if they found the defendant wanting in ordinary care.

Upon the question of contributory negligence on the ■part of the plaintiff, the jury were, in the first place, instructed that if, by the want of ordinary care, he proximately contributed to the injury, “while the defendant was in the exercise of ordinary care, in the discharge of its ■ duties in the running of its train, the plaintiff could not re- • cover.” This is undoubtedly true, but is misleading, for it implies that the negligence of the plaintiff’ would not exculpate the defendant, unless ordinary care was exercised - on its part. This impression might reasonably be strengthened in the minds of the jury by the fifth, sixth, and seventh i rules of law, prescribed in the charge for the government -of the jury.

Nor could the force of the erroneous impression thus .given to the jury be entirely removed by the fourth rule ;announced in the charge, where the “general rule” is correctly stated; for the jury were told in connection there•with, in substance, that the defendant would not be excused from liability on account of the contributory negligence of the plaintiff, if the defendant was guilty of gross negligence. To say the least, this exception to the general rule in regard to contributory negligence, where the action is grounded upon mere negligence, is of questionable soundness. But without passing upon that question, it is sufficient for the present purpose to say that it was given to the jury without explaining that such negligence was anything more than the want of ordinary care; and the jury might well so understand it, since there was no claiip. in the-petition, nor anything in the evidence, tending to show anything more than the want of ordinary care on the part of the defendant. Moreover, the jury were instructed-that the “general rale” was subject to the-further exception that the defendant would not be exculpated, if it failed to-exercise a proper degree of care to avoid the injury, when, by the exercise of ordinary care, it might have become-aware of the danger. Thus the jury were left to find for-the plaintiff, if the defendant failed, by the exercise of ordinary care, to avoid an injury to the plaintiff, to which he-directly contributed himself by his own negligence.

The jury might, therefore, very readily find, under the-eighth rule laid down by the court, that the negligence of the plaintiff was not “ culpable,” and would therefore interpose no legal obstacle to a recovery. Especially would-this be likely to be the case, since the court declined, except in a general way, to instruct the jury so as to aid. them in arriving at a correct conclusion upon the subject of contributory negligence on the part of the plaintiff. At-all events, the misleading character of the charge upon that - subject was not obviated by specific instructions, such as-might have been very properly given, and, in response to • the special requests of the defendant, ought to have been-given by the court.

Other objections to the charge need not be here noticed, for the reason that this case was considered with., three others, in which similar questions arose, and the cases will be reported ’ in the same volume with this case, and. will contain the views of the court, so far as material, upon the remaining questions in the case.

The judgment of the District Court, and that of the-Common Pleas, must be reversed, and the cause remanded, for a new trial.

McIlvaine, Welch, White, and Rex, JJ., concurring.  