
    Strayer v. New York Central Rd. Co.
    
      (Decided April 14, 1931.)
    
      Mr. G. L. Newcomer, for plaintiff in error.
    
      Messrs. Boyle & Lewis and Mr. Robert Newbegin, for defendant in error.
   Williams, J.

Orlie Snyder left Payne, OMo, on November 12th. to go to Toledo to get the body of a deceased sister of Jerry Strayer, the plaintiff. The plaintiff accompanied Snyder on the mission. They got the body and started back about 6 o ’clock in the evemng, going west from Toledo on highway No. 2. It had been raining, and the road was somewhat slippery. As they approached a crossing a mile or two east of Delta, the hearse or ambulance ran into a detour sign, which, was wholly unlighted, and the hearse or ambulance was upset and the plaintiff injured. The detour sign referred to was located just beyond the crossroad used as a detour, and there was no other sign showing that such a detour existed. This detour had been put in to permit the construction of an underground crossing where highway No. 2 crosses the New York Central railway tracks about a mile east of Delta. The plaintiff brought his action against the railroad company, charging it with negligence in the matter of placing the detour sign in the manner in which it was placed, and in not having the detour sign lighted so as to give warning to persons approaching.

Upon trial of the case, a jury was impaneled, and opening statements of counsel for plaintiff and defendant were made: Thereupon counsel for plaintiff offered in evidence a written contract entered into between the railroad company and the state of Ohio, acting by and through the director of highways. Counsel for the defendant objected to the introduction of the contract, and also objected to any evidence being offered in the case, upon the ground that the petition did not state a cause of action, and that, in connection with counsel’s statement of the case, there should be a directed verdict. The court sustained the objection of counsel for the defendant, and dismissed the petition of plaintiff, and refused to submit the cause to the jury. Before the court had finally ruled upon the objections of counsel for defendant, counsel for the plaintiff asked leave to amend the petition by incorporating an averment therein to the effect that the defendant and the state highway department agreed that the defendant should maintain a light on the detour sign. Such leave was refused. To the action of the court in these respects counsel for plaintiff saved his exception.

The written agreement provided for a division of the work and the expense of eliminating the grade crossing between the state of Ohio and the railroad company, and also contained this provision: “Any work not specifically provided for in Section Five shall be done by one of the parties hereto as may be mutually agreed upon from time to time during the progress of the work.” In this connection it would appear that whatever agreement may have existed between the state and the railroad company with reference to lighting the detour sign would be competent. In our judgment, the petition states a cause of action without any amendment, but we are also of the opinion that the amendment which plaintiff’s counsel sought to make was a proper one.

In the opening statement, plaintiff’s counsel clearly indicated that he expected to offer proof tending to show negligence on the part of the railroad company with reference to the placing of and lighting of the detour sign. The written contract between the parties and any agreement with reference to lighting the sign were admissible in evidence, and the trial court should have allowed evidence to be introduced and the trial to proceed.

The judgment will therefore be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Lloyd and Richards, JJ., concur..  