
    CONCURRENT RESPONSIBILITY AT STEAM AND STREET RAILWAY CASES.
    [Circuit Court of Hamilton County.]
    Clara Kopp v. B. & O. S. W. Ry. Co.
    
    Decided, December 16, 1903.
    
      Railways — Duty of Operating Gates — At Steam and Street Railway Grossings — Not Dispensed with by Section 3443-6 — Negligence.
    The provision in Section 3443-6, Revised Statutes, requiring that before a street car crosses a steam railroad track at grade some employe of the street railroad company shall go ahead and ascertain whether the way is clear and free from danger before the car proceeds to cross the track, does not relieve the steam railroad company from the duty of operating its gates at such crossings in a manner indicating to persons in charge of an approaching street car whether or not the crossing may be made without danger. Duties - concurrent in point of time are imposed upon both companies, and a failure of either to perform in that respect will render it liable for injuries resulting from such negligence.
    Giffen, J.; Jelke, J., and Swing, J., concur.
    
      
       Affirmed by the Supreme Court without report, 70 Ohio State, 436.
    
   Counsel for defendant in error assumes that Section 3M3-6, Revised Statutes, providing that before a street ear shall cross over a railroad track at grade, some employe of the company shall go ahead and ascertain if the way is clear, relieves the steam railroad company of the duty of so operating its gates as to indicate to the person operating the street car whether the track is clear. There is nothing in the statute that warrants such conclusion, and, having been enacted for the protection of the passengers, there can arise no implication that the Legislature intended to expose them to danger by releasing the railroad company from the duty of exercising ordinary care. On the contrary it was evidently intended to furnish an additional safeguard to the passengers who have no control over the management of the street car.

Theodore Horstman, for plaintiff in error.

A. W. Goldsmith, for defendant in error.

At the very time that it became the duty of the railroad company to lower its gates to indicate the approach of a train, it was also the duty of the street railway company by its employe to go ahead and see if the way was clear. The failure of each of the companies to perform such duty, concurred one with the other in causing the accident. There was no appreciable difference in the time when the failure to perform the duty by the respective companies occurred. The two ran together, and were the direct cause of the collision.

In the ease of Cincinnati St. Ry. Co. v. Murray, 53 Ohio St., 570, both the street railway company and the steam railroad company were held liable upon a state of facts similar to that in the case before us; except in that case the railroad company was operating its train of cars in a negligent manner.

It may be said of that case that notwithstanding the gates were up, and notwithstanding the employe of the street railway company failed to go ahead to see if the way was clear, still the collision would probably not have occurred had the employes of the railroad company operating the train given some signal of the approaching train, and that the failure to do so was the direct cause of the accident, and therefore the street railway company was not liable. But the court evidently considered the three causes, although distinct and independent, as concurring to cause the collision.

We think, therefore, that the common pleas court erred in arresting the case from the jury, and the judgment will be reversed.  