
    SHOOK v WHEELING & LAKE ERIE RD CO
    Ohio Appeals, 9th Dist, Summit Co
    No 2643.
    Decided March 12, 1936
    Lahrmer & Hadley, Akron, for plaintiff in error.
    Waters, Andress, Wise, Roetzel & Maxon, Akron, for defendant in error.
   OPINION

By STEVENS, J.

It is charged that the defendant was guilty of negligence in failing to comply with §8847, GC, requiring it to keep the public highway clear of snow for a distance of 50 feet each way from the center of its railroad, so that at all times it (the highway) would be in safe and convenient condition for travel; and also in failing to indicate the presence of its train on the crossing by automatic signals or signals of some kind.

The amended answer of defendant denied any negligence on the part of defendant, claimed §8847, GC, to be unconstitutional, and further pleaded contributory negligence of plaintiff and sole negligence of plaintiff.

Of course, the sole question presented is whether or not the pleadings and the opening statement of plaintiff show plaintiff to have been guilty of contributory negligence proximately contributing to his own injury and damage, or of sole negligence, as a matter of law.

Even if it be conceded that the defendant company was negligent in either or 'both of the respects charged in the petition, the facts, as shown by the pleadings and the statement of counsel, are such that, in our judgment, the rule as announced and applied in Toledo Terminal Rd. Co. v Hughes, 115 Oh St 562, precludes this court from doing anything other than affirming the judgment of the trial court.

Judgment affirmed.

PUNK, PJ, and WASHBURN, J, concur in judgment.  