
    The Lake Shore Electric Ry. Co. v. Shepherd.
    
      (Decided May 15, 1933.)
    
      Messrs. King, Flynn & Frohman, for plaintiff in error.
    
      Mr. John F. McCrystal, for defendant in error.
   Lloyd, J.

We shall refer to the plaintiff in error as the railway company, and to the defendant in error as Mrs. Shepherd.

Mrs. Shepherd commenced an action in the Court of Common Pleas against the railway company to recover compensation for personal injuries alleged to have been proximately caused by its negligence. On the morning of February 26, 1929, Mrs. Shepherd, who was then 73 years of age, accompanied by her sister, Mrs. Lob-dell, boarded an interurban car of the railway company at Castalia, paying the required fare for transportation to Sandusky. On this day the tracks of the railway company on Tiffin avenue in Sandusky, where they pass under the tracks of the New York Central and the Lake Erie & Western railroads, were covered with water for about 100 feet, so as to make it inadvisable, if not impossible, for the interurban car to proceed beyond this point. On the other side of this water-covered depression in the highway was an interurban car awaiting the transfer of passengers thereto. Along Tiffin avenue, above the water-covered pavement and on the side thereof not occupied by the railway tracks, was a sidewalk about six feet in width, constructed and maintained by the city of Sandusky which the railway employees directed Mrs. Shepherd and the other passengers on the interurban car to use in going to the interurban car upon which they were to continue their journey. Mrs. Shepherd and Mrs. Lobdell, alighting from the car, walked therefrom across the highway to this sidewalk, which was constructed of sandstone flagging. Mrs. Shepherd stepped up on the sidewalk without assistance, but as they walked along her sister took hold of her arm. One of the flagstones was lower than the other, and the evidence tends strongly to show that Mrs. Shepherd stubbed her foot on the projection thus made and fell upon the walk face downward. The railway company knew of the condition existing at the' place in question, but Mrs. Shepherd, when she boarded the car at Castalia, did not know and was not advised thereof. For her injuries she was awarded a verdict of $500. The railway company asks this court to reverse the judgment entered upon the verdict.

The railway company claims that the transfer of passengers from the one car to the other was necessitated by an emergency which the railway company did not create and could not obviate, and that it had absolutely no control over the sidewalk, which was constructed and maintained by the city of Sandusky and was presumed to be and was apparently in good condition.

Counsel for the railway say in their brief:

“It was a reasonable pathway; it was available for use; it was designed to be walked upon by travelers, and therefore to ask these passengers to travel over that walk and take a.car waiting for them on the other side of the water, was not unreasonable, nor was it an act of negligence.”

The railway having accepted Mrs. Shepherd as a passenger to be transported by continuous passage from Castalia to Sandusky, and having adopted the sidewalk in question for the purpose of transferring passengers to the waiting car, the sidewalk temporarily became, for that purpose, a part of the railway equipment, and it was required to exercise toward passengers the degree of care required by law of carriers of passengers, that is to say, the highest degree of care of which the situation as shown by the facts and circumstances in evidence was reasonably susceptible.

The questions of negligence on the part of the railway company, contributory negligence on the part of Mrs. Shepherd, and the proximate cause of her injuries, were questions to be submitted to the jury for determination.

The general charge of the trial judge is prejudicially defective in that nowhere therein does he state to the jury the issues made in the pleadings, the trial judge stating only:

“The pleadings in the case, which have already been read, are the written statements of the respective claims of the parties, and consist of an amended petition filed by the plaintiff, an answer filed by the defendant and a reply filed by the plaintiff. Now, these pleadings for the purpose also of assisting you, if possible, go with you to your jury room, but you are also instructed that these pleadings in no sense of the word constitute evidence in the case, and will not be so considered by you.”

He then states:

“Certain facts set forth and alleged in the amended petition of plaintiff are admitted by the answer of the defendant to be true, and the facts so admitted may be considered by you as proven in this case, and undisputed.”

Thereupon, after enumerating these admitted facts, the judge further said:

“Other than the admissions as I have enumerated them for you, the defendant denies each and every other allegation contained in the amended petition of the plaintiff.”

The judge then advised the jury as to the allegations of the answer, charging contributory negligence on the part of the plaintiff, Mrs. Shepherd, and called attention to the reply of Mrs. Shepherd thereto, denying ‘ ‘ each and every other allegation therein contained except wherein said answer admits to be true the allegations of the amended petition.”

And with no further reference to any of the alleged facts charging negligence on the part of the railway company the judge proceeded to say:

“The issue being thus made up, the burden of proof in this case, is placed upon the plaintiff to prove by a preponderance of the evidence the material allegations of her amended petition, that is, those material allegations which are not admitted by the answer.”

The only reading of the amended petition that appears in the record is the reading thereof by counsel for Mrs. Shepherd in his opening statement to the jury, and it seems not necessary to suggest that what counsel says and claims in his opening statement to the jury at the beginning of the trial does not ipso facto become a part of the charge of the court to the jury after the submission of the evidence and the final arguments of counsel; nor will permitting the jury to have the pleadings in the jury room serve as a substitute for instructing the jury as to the issues made thereby.

As said in Baltimore & Ohio Rd. Co. v. Lockwood, 72 Ohio St., 586, at page 589, 74 N. E., 1071:

“The court thus left it to the jury to find out for itself what were the specific issues of fact as made up in the pleadings, and which it was the duty of the jury to decide from the evidence, under the instructions of the court.”

The failure of the court to state concretely to the jury the issues made in the pleadings constitutes prejudicial and reversible error.

The majority of this court are also of the opinion that the trial judge erred in the charge as given with respect to the burden of proof. He instructed the jury thus:

“If, by a preponderance of the evidence in tbis case, you find that at the time and place in question, under all of the circumstances then existing, the defendant failed in any one or all of the several respects set forth in plaintiff’s! amended petition, to exercise the degree of care wbicb the court has indicated, then sucb failure upon the part of the defendant would constitute negligence, and if by a preponderance of the evidence, you find that sucb negligence was the direct and proximate cause of the injuries of wbicb the plaintiff complains, then you would be warranted in returning a verdict in favor of the plaintiff, provided of course that the plaintiff herself was not guilty of contributory negligence, concerning wbicb, I shall instruct you a little later.”

Continuing, tbe court said:

“On the other band, if, by a preponderance of the evidence, in tbis case, you find that at the time and place in question, under the then existing circumstances, the defendant did all that any one in its position could reasonably do to guard against injury to the plaintiff, and that the care and skill wbicb prudent men are accustomed to exercise under similar circumstances was exercised, then your verdict should be for the defendant.”

the facts and circumstances in tbis case are unusual and exceptional and require corresponding particularity in the instructions given in the charge of the court, and if the jury regarded these instructions as placing the burden upon the railway company to prove that it did all that could be done to guard against injury to the plaintiff, as it seems to a majority of the court they do, then the instructions would constitute prejudicial error. Above instruction is in effect the same as a portion of the charge given the jury in Jeffery v. Starr, 45 Ohio App., 116, 186 N. E., 819, wbicb was held by tbis court to lie prejudicial error.

In West, Exrx., v. Knoppenberger, 16 C. D., 168, 4 C. C. (N. S.), 305, which was a will contest, the court said that although the rule was correctly stated by the trial judge in parts of the charge, yet “in various places statements are made as to results that should flow from finding or not finding certain facts that in effect shift the burden of proof upon the defendant.”

A majority of this court are of opinion that the principle announced in West, Exrx., v. Knoppenberger, supra, is equally applicable to the instructions given by the trial judge in the instant case, to which we have called attention.

We also find in the charge:

“When the words ‘ordinary care’ are used it means, as you have already on former occasions been instructed, the care and caution employed by ordinary every-day men, under the same or similar circumstances.”

As to whom a jury would include within this classification, whether ministers, clerks, physicians, day laborers, lawyers, or what not, we shall not speculate, nor seek to determine, but presume to suggest that reviewing courts have repeatedly defined ordinary care to be that degree of care which ordinarily careful and prudent persons are accustomed to exercise under the same or similar circumstances. Therefore it would seem preferable to follow judicially announced definitions, whether relating to ordinary care, proximate cause, or whatever the subject thereof may be.

Because of the prejudicial error to which attention has been called the judgment of the Court of Common Pleas is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Richards and Williams, JJ., concur.  