
    The Columbus Railway, Power & Light Co. v. Pickles.
    
      (Decided December 3, 1926.)
    
      Messrs. Johnson, Sharp, Schooler & Toland, for plaintiff in error.
    
      Messrs. Payne & Snyder, for defendant in error.
   Williams, J.

This proceeding in error is brought to reverse a judgment of the court of common pleas of Franklin county in an action brought by Arthur Pickles for injuries to person and property, sustained by reason of an electric car of the defendant company running into the rear of plaintiff’s automobile, which was standing on the track of the defendant company. Upon trial the jury returned a verdict in favor of the plaintiff in the sum of $8000, and, after the plaintiff had accepted a remittitur of $2,000, the court entered judgment in favor of plaintiff in the sum of $6,000.

The defendant operates a street car line in the city of Columbus, and maintains tracks upon Cleveland avenue, which runs north and south. The collision occurred November 8, 1924, at about 7:15 p. m., on Cleveland avenue between two streets running east and west, called Chittenden and Eleventh avenues. At this point there are two street car tracks. At the time of the collision plaintiff’s automobile, a Ford sedan, was on the east track on Cleveland avenue, between Chittenden and Eleventh, at a point about 20 feet south of Chittenden avenue. The plaintiff had stopped at a drug store at the southeast corner of Eleventh and Cleveland avenues, and from there had started home in his Ford sedan, going north on Cleveland avenue. At the time he got into his automobile at the drug store, the tail-light on his automobile was burning. When he came near the point of the collision, he turned out onto the car track to go by an automobile parked along the curb, and his automobile stalled. As it developed that the starter was locked, he got out to push the auto from the track by jarring and shaking it, and, while so engaged, the starter became free. While he was out of the machine, he observed the street car at Eleventh avenue discharging passengers. He thereupon got back into his automobile, and pushed the starter, but the automobile only moved about 4 feet, and stalled again. As he continued in his effort to. start it, he looked back, and saw the electric car within 4 feet of him, and immediately thereafter the car struck him, causing the injuries complained of. As the electric car came north, there was an automobile ahead of it, so that the motorman claims he could not see plaintiff’s automobile, but, as the second automobile came near the one that was stalled, it turned out to go by. The motorman, however, says that he did not see the stalled automobile until he was within 20 feet of it, and that he thereupon put on the brakes, sanded the track, and reversed the power, but was unable to stop in time to prevent the collision. There is considerable evidence in the record tending to show that at the time in question there was no light either on the front or rear of plaintiff’s automobile. Cleveland avenue was lighted, and there was a street light 20 feet to the north of the stalled auto. There was some evidence tending to show that it was not dark along Cleveland avenue, and that an unlighted object could be seen at a considerable distance. There was a conflict in the evidence as to the rate of speed at which the electric car was traveling, the motorman putting it at about 10 or 12 miles per hour. The witness, W. Car-lisle Vogel, who was traveling to the side and back of the electric car after it left Eleventh avenue, testified that there was plenty of light to see the automobile from behind the street car, and that, as the electric car approached the stalled automobile, he, riding in his Essex roadster, saw the stalled auto when it was two or three street car lengths away.

Plaintiff in error maintains that the verdict is manifestly against the weight of the evidence with respect to the 'negligence of the defendant company. We are unable to reach the conclusion that this contention is well founded. The evidence tends strongly to show that the motorman could see the stalled car more than 20 feet away, and, if so, as he was 40 feet behind the automobile traveling ahead of him, according to his own testimony, the inference arises that he was negligent in not applying the brakes sooner than he did; and, if he conld not discern an unlighted object upon the track more than 20 feet ahead, then he should have proceeded with more caution, as there are always likely to be unlighted objects in the streets, such as pedestrians and animals, toward whom a motorman owes the duty of exercising ordinary care in the control of his car. The verdict was not manifestly against the weight of the evidence as to the negligence of the defendant.

Plaintiff in error claims that the damages awarded are excessive. We are unable to reach this conclusion. The evidence shows that the plaintiff is a young man, 25 years of age, and that he was earning, before the accident, $1 per hour as an electrician repairing motors, which required lifting, and that since the accident he can no longer follow his trade, but is compelled to engage in lighter work. He is much reduced in weight since the accident, and suffers from nervousness; he sustained an injury in the back, which prevents his lifting; and he suffers headaches continually. At the time of the trial, more than a year had elapsed since the accident. To what extent the injuries are permanent was a question for the jury. The mere fact that no physician was called to testify regarding the permanent character, or the extent, of the injuries, is, we think, a matter about which the defendant “should not now be permitted to complain, as the defendant had not only the privilege of having an examination made by a physician, but also of calling that physician as a witness. We do not find that the verdict was so clearly excessive that we ought to disturb it as being against the weight of the evidence, nor do we find that it was rendered under the influence of passion and prejudice.

Plaintiff in error also claims that an inference of plaintiff’s negligence arises from the evidence, adduced by the plaintiff, and that such inference was not rebutted. Under Section 6310-1, General Code, it is unlawful to have upon the highway an automobile without a tail-light, and under the law of Ohio such violation of the statute would be negligence per se. Schell v. Du Bois, Admr., 94 Ohio St., 93, 113 N. E., 664, L. R. A., 1917A, 710. Even though the plaintiff was guilty of negligence per se by reason of the violation of the statute, it would not follow that he was barred of recovery, unless such negligence were the sole, direct, and proximate cause of his injuries, or his negligence and the negligence of the defendant company were together the direct and proximate cause of, and directly contributed to produce, his injuries. The rule is settled in Ohio that the question of proximate cause is usually a mixed question of law and fact to be determined by the jury, under the instructions of the court, although, where the controlling facts are undisputed or conceded, it may be a question of law for the court. Davis, Agt., v. Atlas Assurance Co., Ltd., 112 Ohio St., 543, 551, 147 N. E., 913; L. S. & M. S. Ry. Co. v. Liidtke, 69 Ohio St., 384, 69 N. E., 654.

In the instant case the jury, if in its discretion it saw fit to do so, may well have drawn from the evidence the inference that the plaintiff’s negligence in failing to have his tail-light lit may not have been the proximate canse of his injuries, or a cause directly contributing thereto, for the reason that it was deemed probable that the motorman, by the exercise of ordinary care, without the aid of a lighted tail-light, could have seen and discovered the stalled automobile upon the track in time-to have avoided the collision. Claim is made, however, that the plaintiff saw the street car approaching, and was guilty of contributory negligence in getting into, and remaining in, the automobile until the car struck him, and in support of this contention the case of Cleveland Ry. Co. v. Nicholson, 11 Ohio App., 424, is cited. In that case the plaintiff was held to be guilty of contributory negligence as a matter of law where he remained.in front of an unlighted auto at night in total darkness attempting to crank it, with knowledge that a street car was approaching and about to collide with his automobile. We think that case is to be distinguished from the case, at bar. Plaintiff in the instant case, without knowing the tail-light was not burning, got into the automobile, which was not in a place of total darkness, for the purpose of getting it off the track, and was doing his best to do so as the electric street car approached, and he had a right to assume, until in the exercise of ordinary care he had knowledge to the contrary, that the motorman of the electric car would not wrongfully run into him. At any rate, we do not feel inclined to extend the principle applied in the case last cited beyond the state of facts involved in that case.

Upon the question whether plaintiff was guilty of contributory negligence, we find that the verdict was not manifestly against the weight of the evidence. .An examination of the charge shows that the objections thereto are not well founded.

There is no prejudicial error apparent upon the face of the record. The judgment will therefore be affirmed.

Judgment affirmed.

Allread and Ferneding, JJ., concur.

Williams, J., of the Sixth Appellate District, sitting in place of Kunkle, J., of the Second Appellate District.  