
    Clifton v. Norfolk & Western Ry. Co.
    (Decided January 21, 1935.)
    
      
      Mr. Julius B. Samuels, for plaintiff in error.
    
      Mr. Ralph E. Clark, for defendant in error.
   Ross, J.

This is a proceeding in error from the Court of Common Pleas of Hamilton county, wherein that court rendered judgment for the defendant Norfolk & Western Railway Company, a verdict having been instructed in its behalf at the close of the evidence of the plaintiff, who sued to recover for the amount of damages sustained by reason of injuries to his person and automobile, occasioned when the locomotive tender of the defendant in error collided with the automobile of plaintiff in error.

The amended answer denied negligence, and alleged in the alternative contributory negligence.

On the night of July 4, 1931, about 9:30 p. m., the plaintiff in error, John H. Clifton, drove an automobile along Gladstone avenue in the city of Cincinnati. The vehicle contained his wife, who was sitting on the front seat at his right, her father, who was sitting in the rear seat and just behind her, and a friend who was sitting directly behind the plaintiff in error, who was driving. The railroad tracks of the defendant in error extend along the southerly .part of Gladstone avenue. It is not clear whether they occupy a part of the street or not, but the tracks and the street merge without the intervention of any curb or other barrier. The street is poorly lighted and such illumination as there is from the street lamps is obscured by the presence of the foliage of trees.

The plaintiff in error first drove eastwardly along Gladstone avenue. The space between the north curb and the railroad tracks is not sufficient to permit an automobile to turn without backing. The plaintiff in error desired to turn his automobile about and to return westwardly on Gladstone avenue. To do this, he first turned his automobile northwardly toward retaining walls along the north side of the street. He looked up and down the railroad tracks. He could see to the east for several hundred feet. He saw nothing approaching from this direction and heard no alarm of any kind. He then backed his automobile southwardly to within about eighteen inches of the north rail. As he stopped, his wife cried out that a train was approaching, and as1 she did so she jumped from the vehicle. Her father and the other guest in the car did likewise. The tender of the locomotive struck the rear portion of the automobile just as the guest left the vehicle. The plaintiff in error remained in the automobile endeavoring to start it forward. When the collision occurred he was thrown out of the vehicle, which was almost completely wrecked. There were no lights on the locomotive or tender and no warning signal was given. The plaintiff in error suffered severe injuries to his person from the collision.

Upon these facts the trial judge held the plaintiff in error, Clifton, guilty of contributory negligence as a matter of law.

Plaintiff in error was confronted with a sudden emergency. At least two courses were open to him, leap from the car or try to make it move out of the area of danger by its own power. His judgment prompted him to the latter course. Can it be said that such error of judgment amounted as a matter of law to contributory negligence? This court has held that an error in judgment is not synonymous with negligence. Salee v. Cincinnati St. Ry. Co., 38 Ohio App., 450, 176 N. E., 127.

In 29 Ohio Jurisprudence, 424, Section 35, it is stated:

“The general rule is that one who in a sudden emergency acts according to his best judgment,, or who, because of want of time in which to form a judgment, omits to act in the most judicious maimer, is not chargeable with negligence. An emergency, however, does not change the requirement of ordinary care. A person confronted with a sudden emergency is required to use only that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. In other words, he is not held to the exercise of such good judgment as might be required where opportunity existed for reflection and choice of action. In cases of emergency, one is not held to a nicety and delicacy of judgment. The circumstances of the emergency and the apparent danger must be taken into consideration in determining the question of the exercise of ordinary care, or the question of contributory negligence. There is an ex post facto wisdom, which, after everything has been done without success, can suggest that something else should have been attempted, but this is a sagacity much more astute than ordinary human foresight, and can hardly furnish a fair rule by which to determine the propriety of what has been done in good faith, and with judgment exercised under the best light afforded.”

In the same volume of Ohio Jurisprudence it is stated at pages 567, 568 and 569, Section 109:

“When a person, without fault on his part, is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present; nor can it be said that, as matter of law, he is guilty of contributory negligence because he fails to make the most judicious choice between hazards presented, or would have escaped injury if he had chosen differently. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do, in tbe presence of such existing peril. It bas often been beld by courts that when a person suddenly finds himself in a position of imminent peril or danger, be cannot be beld to strict account as to tbe course of conduct to be by him pursued to avoid injury. He is not beld to nicety and delicacy of judgment. He may bave pursued tbe wrong course, determined after tbe end of tbe misfortune. His conduct is not to be viewed by looking backward in order to determine tbe question whether be exercised ordinary care, but by looking forward, when tbe circumstances were unforeseen and tbe result unknown. Errors in judgment on tbe part of a plaintiff, in trying to escape imminent danger brought about by tbe defendant’s negligence, do not constitute contributory negligence, if the acts done were such as ordinarily prudent persons might bave been expected to do under like circumstances, even though tbe injury would not bave happened if tbe acts had not been done. A person confronted with a sudden emergency is required to use only that degree of care which an ordinarily prudent person would exercise under tbe same or similar circumstances. In accordance with these principles, where a passenger, to avoid impending danger, attempts to leave tbe car in which be is riding, believing, upon reasonable grounds, that by so doing be will escape injury, and while in tbe act of leaving is injured through tbe railroad’s' negligence, be is not chargeable with contributory negligence, although, bad be made no attempt to leave tbe car, tbe injury would not bave happened.”

Tbe Ohio cases noted amply support tbe text.

Whether after carefully looking up and down tbe track and ascertaining that nothing was in sight, tbe plaintiff in error was negligent in backing bis automobile too close to tbe track, presents a question which only a jury can properly decide,

It is. our conclusion, therefore, that the court was in error in taking the case from the jury, and that the several questions of fact involving the exercise of care by the plaintiff in error should have been submitted to the jury.

The judgment is reversed and the cause is remanded to the Court of Common Pleas for a new trial.

Judgment reversed and cause remanded.

Hamilton, P. J., concurs.  