
    Tyler, Admr., v. The Hocking Valley Ry. Co.
    
      (Decided December 3, 1926.)
    
      Mr. F. 8. Monnett, for plaintiff in error.
    
      Mr. F. G. Hector and Mr. F. G. Amos, for defendant in error.
   Williams, J.

Arthur D. Tyler, as administrator of the estate of Lucretia A. Tyler, deceased, brought an action in the court of common pleas of Franklin county against the Hocking Yalley Railway Company for the alleged wrongful death of the decedent. Upon trial, the jury returned a verdict for the defendant company, and this proceeding in error is brought for a reversal of the judgment entered thereon.

Briefly stated, the evidence discloses that on February 2, 1925, at about 2 p. m., the defendant company was operating a passenger train at a speed of 45 miles per hour in a northerly direction while approaching a grade crossing known as Big Walnut crossing, which is located on the defendant’s main line a few miles south of the city of Columbus. The highway at that point is an ordinary dirt and cinder road, and crosses the railroad almost at a right angle. The decedent was riding in an automobile as a passenger with one L. W. McCarley, and was approaching the crossing from the west. The evidence shows beyond dispute that the crossing is in the open country, and that the approach of the train could be plainly seen by the occupants of the automobile when they were about 400 feet from the crossing and the train over 1,000 feet away. For over 400 feet immediately south of the crossing the track is elevated above the level of the ground, and then for some distance there is a cut of about 4 feet above which the train may be seen. One witness, Mrs. Ira L. Iiundtz, saw the automobile as it passed in front of her house about 200 fpet from the crossing, and at the same time she saw the train approaching, in plain view, about 600 or 800 feet away, and heard the whistle of the locomotive. The automobile, notwithstanding these facts, was driven upon the track ahead of the train.

It is claimed that the court below erred in permitting counsel for the defendant company to elicit from witnesses an opinion as to whether or not a speed of 45 miles per hour over the crossing in question was fair, reasonable, and proper. Clearly the action of the court in this respect was error. Ford’s Adm’r. v. Paducah City Ry. Co., 124 Ky., 488, 99 S. W., 355, 8 L. R. A. (N. S.), 1093, 124 Am. St. Rep., 412. It was not; however, prejudicial to the plaintiff, for the reason that the crossing was in the open country and the railroad had a right to run its trains at such rate of speed as those in charge of them deemed safe for the transportation of passengers and property. The crossing was wholly unobstructed, and there were no facts and circumstances which could make speed an element of negligence. New York, C. & St. L. Rd. Co. v. Kistler, 66 Ohio St., 326, 64 N. E., 130. The court applied the principles established by this leading case in his. charge in regard to speed and the control of the train, and in his rulings on requests for instructions to the jury. In this respect the court did not err. It being in the open country, -the engineer was not required to keep his train under control at the crossing.

It is also claimed that the court erred in refusing to give one of the plaintiff’s special requests, in which he sought to apply the rule stated in the third paragraph of the syllabus of Penn. Rd. Co. v. Snyder, 55 Ohio St., 342, 45 N. E., 559, 60 Am. St. Rep., 700, and in the second paragraph of the syllabus of Dayton, C. & P. Trac. Co. v. Boswell, 17 Ohio App., 293, which rule involves the principle that, where a person is suddenly confronted with two or more hazards or conflicting perils, it is a question for the jury to determine whether or not he was justified in taking the course and accepting the hazard he did, and that he will not be held to be guilty of contributory negligence as a matter of law in accepting one hazard or peril rather than another. This principle has no application to the case at bar, because the decedent was not presented with a choice of hazards.

It is also complained that the court erred in charging the law as to contributory negligence with reference to the plaintiff. Of course, under the law of Ohio, the negligence of the driver of the automobile cannot be imputed to the plaintiff’s decedent, a passenger. Board of Comm’rs. of Logan County v. Bicher, Admx., 98 Ohio St., 432, 121 N. E., 535; Toledo Railways & Light Co. v. Mayers, 93 Ohio St., 304, 112 N. E., 1014. On the other hand, plaintiff’s decedent was required to use ordinary care in the exercise of her own faculties in looking and listening as she approached the crossing, and the court did not err in giving the law as to contributory negligence. The inference arises from, the evidence that decedent did not exercise ordinary care in looking and listening or she would have heard the whistle and seen the train and warned the driver of its approach.

It is also claimed that the court erred in not permitting the plaintiff to offer in evidence the following rule of the defendant company under the head of “Firemen,” which reads as follows:

“They must, when on the road, and not otherwise properly engaged, keep a careful watch upon the track and instantly warn the engineer of any obstruction or signal.”

We are of the opinion that it was not error to exclude this rule, for the reason that, if such a rule were properly made and promulgated and enforced, it Tyould impose no duty upon a fireman of the defendant company not already enjoined by law. In other words, without the rule, the duty would rest upon the fireman to exercise ordinary care with reference to watching upon the track ahead and as to warning the engineer. With this rule ordinary care to keep a careful watch was all that was required.

We are of the opinion that there is no prejudicial error disclosed by the record, and the judgment should 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.  