
    The New York, Chicago & St. Louis Rd. Co. v. Van Dorp.
    
      (Decided January 13, 1930.)
    
      Mr. W. A. Eversman and Mr. Charles W. Racine, for plaintiff in error.
    
      Mr. Wm. A. Finn and Mr. Edgar Norris, for defendant in error.
   Williams, J.

The plaintiff below, George J. Van Dorp, sustained personal injuries and damage to his automobile in a collision with a train of the defendant railroad company while he was driving his automobile in a southerly direction along Elizabeth street in the village of Maumee. Upon trial had in the court of common pleas, there was a verdict and judgment in favor of the plaintiff in the sum of $5,000. The railroad company prosecutes error.

Plaintiff in error maintains that the court erred in refusing to direct a verdict for the defendant.

The train, being engaged in interstate commerce, had left Toledo at 7:30 p. m., and arrived at the crossing in question about 7:45. At the point where the railroad track crosses Elizabeth street, the train was going in a southwesterly direction, as the street and track cross substantially at right angles. The collision took place almost exactly 30 minutes after sunset, and according to the testimony of a meteorologist connected with the United States Weather Bureau, shortly before 8 o’clock that evening nine-tenths of the sky was covered with clouds. Many of the ‘witnesses testify that it was dark at the time of the collision. Plaintiff also called several witnesses who testified that the headlight of the locomotive was not burning as it approached the crossing. There is evidence tending to show that the speed of the train at the time was 35 to 40 miles an hour. The train was one which did not stop in the village of Maumee except when flagged. Plaintiff testified that he stopped about 10 feet before he reached the crossing, and looked both ways, and saw nothing, and that thereupon he proceeded to cross and was hit. In this respect he was corroborated by other testimony. Plaintiff’s car was a 1924 model Ford sedan. There is evidence tending to show that no bell or whistle was sounded as the train approached the crossing, and, as the engine of the automobile continued to run, the inference arises that the sound made by an automobile of that age and make would drown the ordinary noise made by the approach of a train, so that the driver would have great difficulty in hearing it.

Interrogatories were submitted to the jury at the request of defendant, and the jury found by its answers thereto that the engineer did not blow the whistle and ring the bell, as required by the statutes of the state of Ohio, that the headlight of the locomotive was not lighted at the time of the collision, and that the plaintiff’s own negligence did not directly contribute in the slightest degree to the collision.

Plaintiff in error claims that the case of Detroit, Toledo & Ironion Rd. Co. v. Rohrs, 114 Ohio St., 493, 151 N. E., 714, is an authority here. In that case the collision took place in broad daylight. In the instant case, if the headlight was not burning, and darkness had come on, the railroad crossing was not only a place of danger, but became a trap at which the careful and prudent might be caught in a collision. The instant case therefore stands on a different footing. It is more like the case of Robinson, Admx., v. Pennsylvania Rd. Co., 117 Ohio St., 43, 158 N. E., 83. In that case the collision happened in the nighttime, and the injured party was not familiar with the crossing. In the instant case the injured party was familiar with the crossing, but, according to the evidence adduced by plaintiff, was misled by the failure to sound the bell and whistle and have the headlight lighted. Whether the defendant was guilty of actionable negligence, and whether the plaintiff was guilty of contributory negligence, were questions for the determination of the jury. One looking for the approach of a locomotive in the nighttime naturally expects to see a headlight, and, if he looks both ways, at a time when looking will be effective, and sees none, he may well infer that no train is approaching. The trial judge did not err in refusing to direct a verdict.

There is much conflict in the evidence upon the various issues, and it does not appear from the record that the verdict is clearly and manifestly against the weight of the evidence.

Plaintiff in error claims the court erred in charging that the jury might consider whether defendant was guilty of negligence in the speed at which it operated its train. The defendant company also requested certain written instructions before argument which raised the same question. Counsel cite N. Y., C. & St. L. Rd. Co. v. Kistler, 66 Ohio St., 326, 64 N. E., 130. In that case it was held that, in the absence of statute, negligence could not be predicated upon the speed at which trains were operated in the country. The collision in the instant case, however, occurred within the corporate limits of the village of Maumee at a point where there were many dwelling houses, and, although there was not offered in evidence any ordinance regulating speed within the corporation, yet there was a duty owing on the part of the railroad company not to operate its train through the village at a greater speed than ordinary care warranted. There was no error in this portion of the charge.

Plaintiff in error claims that the court erred in charging the law as to failure to have the headlight lighted. The part complained of is as follows:

“Then in Section 8945-1 we have this provision: ‘Every railroad corporation operating a railroad or a part of one in this state, shall * * * equip each of its locomotives # * * with a headlight of such construction, and with sufficient candle power to render plainly visible at a distance of not. less than 350 feet in advance of such engine, etc.’ Now the purpose of having the headlight on the engine is to use it when the circumstances demand its use. Briefly, one of the purposes of these signals, is to act as a warning to persons in using the highways at grade crossings. If the railroad observed these requirements no complaint can be offered. If it did not observe them, but violated one or more of the provisions of the statute referred to, that violation in and of itself constituted negligence on the part of the defendant, and if such negligence were the proximate cause of plaintiff’s injury and loss the defendant would be liable therefor provided the plaintiff himself were not negligent in a manner which contributed to his own injury.”

Section 8945-1, G-eneral Code, referred to in the part of the charge quoted, is of no binding force in view of the federal law. The original Boiler Inspection Act enacted by Congress (36 Stats, at L., 913) had application to the boiler only, but that act as amended is a general one, and extends to the design, construction, and material of every part of the locomotive and tender and of all appurtenances. This act confers upon the Interstate Commerce Commission the power to specify the sort of equipment to be used, and the fact that the Commission has not seen fit to exercise its authority to the full extent conferred has no bearing upon the construction of the act delegating the power, and state legislation with reference to the headlight, which is an appurtenance of the locomotive, is precluded, for the reason that the Boiler Inspection Act, as amended (Title 45, Section 22, et seq., U. S. Code) was intended to occupy the whole field. Napier v. Atlantic Coast Line Rd. Co., 272 U. S., 605, 47 S. Ct., 207, 71 L. Ed., 432.

Since the passage of the amended act in question, the Interstate Commerce Commission, by orders made in pursuance of the amended act, the last of which is dated April 17,1919, has covered the matter of headlights by Order No. 129(a), which reads as follows:

“129. Locomotives Used in Road Service. — (a) Each locomotive used in road service between sunset and sunrise shall have a headlight which shall afford sufficient illumination to enable a person in the cab of such locomotive who possesses the usual visual capacity required of locomotive enginemen, to see in a clear atmosphere, a dark object as large as a man of average size standing erect at a distance of at least 800 feet ahead and in front of such headlight ; and such headlight must be maintained in good condition.” Roberts’ Federal Liabilities of Carriers (2d Ed.), vol. 2, page 2063.

This court will take judicial notice of the orders of the Interstate Commerce Commission. Roberts’ Federal Liabilities of Carriers (2d Ed.), vol. 2, page 1964, Section 1020.

While in the instant case the federal law controls as to headlights, and not the state law, it will be observed that the order of the Commission relating thereto is more drastic than the provisions of Section 8945-1, G-eneral Code.

We are not required to determine whether the court committed error in giving the part of the charge above quoted as to headlights, for, if error was committed, it was not prejudicial.

As before stated in this opinion, the jury found that the headlight of-the locomotive was not lit at the time of the collision. If it was not lighted, it is apparent that it could not have shone ahead at all, and therefore the jury never got to the inquiry as to the distance it shone ahead of the locomotive, or what objects it disclosed.

We have examined all the questions raised by the plaintiff in error, and find no prejudicial errors apparent upon the face of the record. For the reason given, the judgment will be affirmed.

Judgment affirmed.

Lloyd and Richards, JJ., concur.  