
    No. 657
    B. & O. R. R. CO. v. DE LEONE
    U. S. Appeals, 6th Circuit
    No. 3750.
    Decided May 8, 1923
    259. MUNICIPAL LAW.
    Effect of ordinance regulating speed of train in interstate commerce. Ordinance regulating speed of automobiles (47) and R. R. trains (311) held not violation of statute requiring ordinance to contain only one subject. Negligence (268) — Contributory negligence of truck driver at R. R. crossing held question for jury (367).
    Attorneys — C. F. Smith iHarrington, Deford, Huxley & Smith, on- brief, for R. R.; L. H. Winch . (Payer, Winch, Minshall &'Kareh, oñ brief), for De Leone.
   DONAHUE, C. J.:

Epitomized Opinion

DeLeone, adm. of estate of Mandalia, sued R. R. Co. in Portage County Common Pleas for causing wrongful death of Mandalia. On petition of R. R. use was removed to U. S. District Court. Mendalia s driving an automobile truck south on Chestnut ;reet in Ravenna, Ohio. This street is crossed at grade at right angles by two main tracks and two switch tracks of B. &. O. R. R. R. R. Co.’s eastbound passenger train No. 10 collided at this crossing with truck driven by deceased, causing injuries which resulted in his' death.

Petition averred that R. R. Co. was negligent in failing to sound whistle or bell and in operating its train over this crossing at an excessive rate of speed in violation of an ordinance of Ravenna. R. R. Co. nied engligence and averred Mendalia was guilty of contributory negligence. R. R. Co.’s requested charge, that train was engaged in interstate commerce and carrying U. S. mail, and Ravenna ordinance is undue burden on interstate commerce and violation thereof by such a train was not negligence, was refused, and exceptions noted. Judy returned a verdict for plaintiff, motion for a new trial was overruled, and judgment entered on the verdict. R. R. prosecuted error. In affirming the judgment the Court of Appeals held:

1. An ordinance regulating the speed of trains through a municipality enacted under the exercise of police power which conforms to the limitations prescribed by the legislature, is presumptively reasonable and valid and not in conflict with the' state or federal constitution. • But .the -presumption may be rebutted an din order to overcome such presumption a R. R. Co. must affirmatively show its unreasonableness, 103 O. S. 471 and 178. The R. R. Co. has not challenged the reasonableness of the speed limit fixed by the ordinance.

2. This ordinance which regulates the speed of automobiles and" R. R. Trains is not a violation.-of GC. 4226, requiring that an ordinance shall contain but one subject, because it is an ordinance regulating speed and the fact that it regulates the speed of more than one vehicle is of no importance'. It might have included a dozen other vehicles, if. there were such vehicles requiring regulation." 75 O. S. 413.

■ 3. The. evidence in this case disclosed such- a condition ' of the ■ crossing, particularly, in reference- to obstructions to view, which taken in connection with the_ evidence in relation to the speed at which this train was traveling, that the alleged contributory negligence of the deceased does not appear therefrom as a matter of law, but on the contrary was a question for the determination of the jury. 94 O. S. 93, 103; 103 O. S. 471, 482.  