
    RAILROADS — NEGLIGENCE.
    [Lake (7th) Circuit Court,
    October Term, 1901.]
    Burrows, Bauble and Cook, JJ.
    Lake Shore and Michigan Southern Railway Co. v. A. G. Reynolds, Admr.
    1. Watchmen and Appliances at Railroad Crossings, Unnecessary, When.
    Where a highway crosses a railroad outside of a municipality, the only tracks being the two main tracks for use of regular trains, and there is an unobstructed view both ways of approaching trains for a distance of six or seven hundred feet when within forty feet of the tracks upon the highway, the railroad company is under no obligation to have a watchman or maintain appliances not required by the statute, to warn travelers of approaching trains. The B. S. & M. S. Ry. Co. v. Gaffney, 6 Circ. Dec. 94 (9 R. 33), approved and followed. i
    2. Necessity to Book and Bisten in Such Case.
    In such case, when there is nothing to divert the attention of the traveler on the highway as he spproaches the track, it is error to instruct the jury “ that ordinary prudence requires that a person in full possession of his faculties of seeing and hearing, when approaching a known railroad crossing, use his faculties for the purpose of discerning and avoiding danger from approaching trains and his failure to do so without reasonable excuse therefor is negligence.” The jury should have been instructed unqualifiedly that it was his duty to use his senses and look and listen for approaching trains.
    
      3. Negligence oe Engineer in not Seeing Traveler.
    In suck case it is error to charge the jury that if the engineer in charge of the locomotive, as a reasonable and ordinarily prudent person, by the exercise of ordinary care could or should have seen and known of the perilous position of the traveler upon the highway, and afterwards by the exercise of , ordinary care should have checked-or stopped the train and thereby prevented the injury the company would be liable, notwithstanding the negligence of the traveler; the true rule being that the engineer must have seen and known of the perilous position of the traveler and not might have seen and known by the exercise of ordinary care. Railway Co. v.' Kassen, 49 Ohio St. 230. distinguished, and Railway Co. v. Schade, 8 Circ. Dec. 316 (15 R. 424) and Railway Co. v. Rhlert, 10 Circ. Dec. 443 (19 R. 177), disapproved.
    Heard ON Error.
    Theo. Hall, for plaintiff in error.
    A. G. Reynolds, Bosworth &] Hannan and C. W. Osborne, for defendant in error.
   COOK, J.

Edward C. Corlett, plaintiff’s intestate, was killed on the afternoon of September 15,1897 while attempting to cross with a horse and buggy the tracks of the Lake Shore and Michigan Southern Railway Company at what is known as “ Casement Crossing ” about a mile from Paines-ville in this county. The crossing is a diagonal one and the highway for a short distance is close to the tracks bub not sufficiently near to make it in that respect especially dangerous. Corlett was traveling in a southwesterly direction, the tracks running east and west at that point. The easterly view of the railway from the highway at some points as you approach the crossing is obscured for two or three thousand feet by houses, trees, undergrowth and particularly by a cut and curve; the evidence however conclusively shows, that a traveler on the highway, sitting in a buggy as Corlett was at the time he was killed, has a full and unobstructed view eastward of approaching trains for a distance of six to seven hundred feet anywhere from a point forty feet on the .highway to the north rail of the north track. No one was in the buggy with Corlett; his horse was not unmanageable; no other train was approaching; no one else was on the highway; the view was not obstructed westward, and he was traveling at a slow rate of speed.

With these conceded facts in the case, two objections are made to the judgment of the court of common pleas: First. That the court erred in its charge to the jury and, second, that the verdict is against the evidence.

The first objection made to the charge is respecting the necessity of having some appliance at the crossing for the protection of travelers upon the highway. The clause of the charge objected to is as follows:

“ There is no rule of law in Ohio requiring a railway company to keep a flagman or watchman at a railroad crossing outside of a municipality and the absence of one is not of itself negligence. But it was the duty of defendant, if it should appear that this particular crossing was exceptionally dangerous, to adopt such measures as common prudence, and a reasonable and just regard for the public safety should dictate to secure to the plaintiff’s decedent a reasonable degree of safety in his proper and legitimate use of the crossing. The court cannot say whether or not the crossing in question did require on the part of the defendant any particular appliances to safeguard the public or require any other measures than those taken by the defendant, but it is for you to determine from the evidence under all the circumstances of the case whether or not the defendant did take such measures at that crossing as common prudence demanded should be taken to secure the plaintiff’s intestate when using said highway at the crossing in a reasonable degree of safety in his right to use the crossing, and in determining that question you have a right to take into consideration, the condition of the crossing; its dangers; whether or not a flagman was stationed there; what obstructions there were, if any, to the view; whether or not signals were given, and all the facts and circumstances, surrounding the crossing at the time; and if you find by a preponderance of the evidence that the defendant did not use such ordinary care in protecting the decedent at said crossing as common prudence dictated, such want of care on the part of the defendant would be a circumstance which you should consider in determining whether or not the defendant was guilty of negligence, and if you should find that it was the proximate cause of the death of plaintiff’s intestate it would authorize you to return a verdict in favor of the plaintiff.”

By this clause of the charge the court instructed the jury that if they should find that the crossing was an exceptionally dangerous one, then it was the duty of the company to keep a flagman at the crossing or have some appliance to safeguard the public in the use of the crossing.

As we have stated, this crossing was outside the city. The travel upon the highway was no greater than what is usual upon a country road. It was not within yard limits where there was a network of tracks, there being only the two main tracks ; the railway company had done nothing to make this crossing exceptionally dangerous; it had placed no obstructions within the danger line interfering with the vision, and the trains were the ordinary through trains of the company. Under such circumstances we think the company was under no obligation to take further precautions than those prescribed by statute.

This case differs entirely from Cleveland, C. C. & I. Railway Co. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321]. In that case the crossing was over a street in the city of Cincinnati; the street was in a populous part of the city and was generally traveled; there were a number of trains which were used for switching which added greatly to the danger of using the crossing. Of such character also was the crossing in the case of Grand Trunk Rd. Co. v. Ives, 144 U. S. 408 [12 S. Ct. Rep. 679], referred to by counsel. We are of the opinion therefore in this case that the court erred in charging the jury that they might determine whether or not the company should have kept a watchman at the crossing or used some appliance to safeguard travelers at this crossing. Such was the holding of this court in Lake Shore and Michigan Southern Ry. Co. v. Gaffney, 6 Circ. Dec. 94 (9 R. 33, 45), a case involvingjthis same crossing and which we are still inclined to follow.

Furthermore the charge was very indefinite and uncertain respecting the subject of appliances. What were the appliances that should have been used to protect travelers ? This question was left entirely to the jury. Each juror was left to determine what appliance should have been used. One would think this, and another that, until the conclusion is reached, that at least some appliance should have been adopted by the company. It is a matter of legislation usually when and what appliances should be used to safeguard travelers at a crossing, and to leave to the determination of jurors what appliances should be used would be very dangerous.

The next objection to the charge of the court is to that part of it where the jury is instructed as to the duty of Corlett to use his senses before attempting to cross over the track — the court said to the jury : “Now as to the question whether or not Edward C. Corlett was guilty of contributory negligence. You are instructed that ordinary prudence requires that a'person in the full possession of his faculties of seeing and hearing when approaching a known railroad crossing use his faculties for the purpose of discovering and avoiding danger from approaching trains, and his failure to do so without reasonable excuse therefor is negligence. It is his duty to use ordinary care under all the circumstances, and if his view was obstructed, that would increase rather than diminish the care which he should use; and as the decedent, Edward C. Corlett, when approaching said railroad crossing, was bound to usé his senses, it was his duty to look and listen. ”

That is to say — it was the duty of Corlett to look and listen without there was a reasonable excuse for his not doing so. The ’ instruction is practically the same as the first paragraph of the syllabus of the case of Cleveland, C. & C. Rd. Co. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633], It was proper in that case because the facts made it applicable, but in this case there was no evidence whatever that there was any excuse for not looking and listening for an approaching train before attempting to cross the tracks. As we have stated, for forty feet at least he had a plain view of the tracks and the approaching train for six or seven hundred feet. At the speed the train was running and he was traveling, had he looked at any time while he traveled that forty feet, he necessarily must have seen the approaching train. There was nothing to divert his attention. No other train approaching; nothing to the west ; no one in his buggy; his horse going quietly along at a slow gait; no other traveler on the road, nothing whatever to excite him, or to cause him not to use his senses for his own protection. Why then say to the jury he should look and listen without there was a reasonable excuse for his not doing so ? The charge simply suggested to the jurors to conjure up an excuse, to ransack their brains for an excuse, to imagine an excuse.

The jury was not instructed to examine the evidence to ascertain if there was an excuse and could not be so instructed for there was no evidence. In this case the jury should have been told directly that it was the duty of Corlett to look and listen for an approaching train before attempting to drive over the tracks, and if the jury should find that by reason of his failure to do so he drove upon the track and was killed, then the plaintiff could not recover.

Abstract propositions of law should not be given to a jury when there is no evidence to make them applicable; the tendency is to mislead. The charge should be applicable to the facts so that the verdict will be responsive to the facts and the law. The facts in Railroad Co. v. Crawford, supra, were entirely different. In that case the train was hidden in a cut for a distance of two hundred feet until it got within a few feet of the crossing. Had the deceased looked he could not have seen the train upon entering the danger line. There were children in the carriage demanding his attention and other circumstances which might justify the jury in finding that there was a reasonable excuse for his not looking and listening.

In this case there was no excuse shown at all and therefore the question of excuse had no application. The court was asked in the seventh instruction requested by defendant’s counsel to say to the jury, “It was the duty of Edward C. Corlett in approaching the tracks there to use his senses of seeing and hearing, and if he failed to do so, and such failure caused or contributed proximately to his injury, plaintiff cannot recover.” This request was refused. It should have been given, or the jury charged to the same effect.

The next question made is that the court erred in its charge respecting the duty of the engineer in ascertaining the perilous position of the deceased and preventing the injury. In the charge the court practically told the jury that if the engineer by the exercise of ordinary care could have seen the deceased and known of his perilous position, and thereafter by the exercise of ordinary car could have stopped the train, or so far checked the speed thereof as to have^-revented the injury, and such failure was the proximate cause of the injury, then they should find for the plaintiff. In other words, if the engineer by the exercise of ordinary care could have or should have known of the perilous position of plaintiff’s intestate, and thereafter by the exercise of ordinary care could have prevented the inj ury, then the company would be liable notwithstanding his own negligence.

Two objections are made to this portion of the charge: First, that there is no evidence whatever upon which to base it; and, second, that as an abstract proposition it is wrong. We are of opinion that both objections are well taken.

Plaintiff below called the engineer as a witness in his own behalf, and he testified that the first he saw of the decedent he was about fifteen feet from the track driving toward the same, giving no attention whatever to the approaching train ; that his train was running at a speed of about fifty miles an hour; that he immediately sounded the danger signal, but before he could apply the air to the brakes, he struck the horse and buggy of the decedent. There was no contradiction of this evidence and therefore there was nothing to justify this portion of the charge of the court.

It is well settled that for the court to instruct the jury that they shall pass upon a fact that is material in the case as this was when there is no evidence at all to support it, is misleading and such error as will require a reversal of the judgment. Independent of this fact can this portion of the charge be held to be good upon any theory? It is true that th;s portion of the charge is supported by the holding in Lake Shore & M. S. Ry. Co. v. Schade, 8 Circ. Dec. 316 (15 R. 424), nevertheless we must hold it to be erroneous. The proposition simply amounts to this, that if a traveler on the highway negligently drives upon the track, and the servants of the railway company by the exercise of ordinary care could or should have known of his perilous position in time to save him by the exercise of ordinary care, then the company is liable. We cannot subscribe to this doctrine.

It is well settled that if the employe did know of the perilous position of the traveler, then he must exercise ordinary care in checking or stopping the train. Both the dictates of humanity and the law would require that. Indeed, he should do more; he should make every possible effort to check or stop the train, and if he did not do so it would be wilful negligence. But to say, if the engineer did not know but might have known, in other words if the engineer did not look and plaintiff's intestate did not look, both guilty of negligence, then plaintiff could recover, would be a paradox in law. It cannot be claimed that the negligence of one is any more the proximate cause than the other; the negligence of each is in not looking, when if he had done so, he might have ascertained the danger. If the train had been derailed and injury followed, would the company have had a right of action against the estate of the deceased as the estate had a right of action against the company ? It is said that the case of Cincinnati, H. & D. Rd. Co. v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674], sustains the contention of plaintiff in error. We do not think so. The facts of that case show that the company through its servants had actual knowledge that Kassen was upon the track as he had fallen from one of the trains of the company about two hours before his death, while the train was in rapid motion, and was killed by being run over by another train, the crew of the first train doing nothing whatever to ascertain the result of his fall or to inform the crew of the other train of the accident.

In the third paragraph of the syllabus of that case, the court says: “ The rule that the negligence of the injured party which proximately contributes to the injury, precludes him from recovering, has no application where the more proximate cause of the injury is the omission of the other party after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.”

It is said, however, that the case of Railway Co. v. Schade, supra, was affirmed by the Supreme Court. So it was, but without report, 57 Ohio St. 650. Upon what grounds we are not informed. It may have been for some reason distinct from the one under consideration. If we were sure that the fourth proposition of the syllabus of that case was approved by the Supreme Court we would be bound by it and would follow it, but we cannot bring ourselves to the conclusion that such is the fact in the light of another case subsequently decided by the Supreme Court with report. In Lake Shore & M. S. Ry. Co. v. Ehlert, 10 Circ. Dec. 443 (19 R. 177), this same question again came before the circuit court of the eighth circuit and the same holding was made, the first, second, third and fourth paragraphs of the syllabus being as follows:

“ 1. It is negligent for a person having approached a railway crossing where the gates have been lowered, to stand, while waiting for a train to pass on one track, in such close proximity to another track, on which trains are known to be operated, as to be within reach of a passing train, or to attempt to walk across the tracks after the gates are lowered.
“ 2. Although a person may have been guilty of negligence in placing himself in a dangerous position, in which he was liable to be injured by passing trains, yet if the employes of the railway company in charge of an approaching train knew of his danger, or might have known by the exercise of ordinary care, in time to protect or save the life of such person, the negligence of the railway is the proximate cause of the injury and a recovery may be had.
“3. In an action for wrongful death, where the evidence clearly shows that deceased, having approached a railway crossing, after the gates were lowered, took a position so near another track as to be within reach of a passing train, and that he remained in that position until he was killed, and the evidence also shows that the employees of the railway company in charge of the train saw him, or could by the exercise of ordinary care have seen him for a distance of 150 feet from where he was killed, the rule stated in the preceding paragraph may be applied > and the question in such case, whether the railway company was negligent in failing to sound the whistle in time to warn deceased of his danger and save his life, was properly submitted to the jury, although deceased was guilty of negligence in getting near or on the track.
“ 4. The rule that a recovery may be had where defendant’s negligence was the proximate cause of the injury, notwithstanding contributory negligence upon the part of plain tiff's decedent, should be given with great caution; in many cases, where the time for action is short, and the principle is so vague and uncertain, it would be misleading, but under the facts stated in the preceding paragraph it was properly given.”

In this last case the court justifies its holding on the authority of Lake Shore & Michigan Southern Railway Co. v. Schade, supra. This last case also went to the Supreme Court, Lake Shore & Michigan Southern Railway Co. v. Ehlert, 63 Ohio St. 320 [58 N. E. Rep. 812]. and the circuit court was reversed, so that we are at least in doubt as to what is the holding of the Supreme Court upon the question, and being in doubt, we cannot subscribe to the rule laid down in Railway Co. v. Schade, Admr., and Lake Shore & Michigan Southern Railway Co. v. Ehlert, supra.

The last question made is; that the verdict was manifestly against the evidence. As we have before stated, the unquestioned facts are that plaintiff’s intestate could have seen the approaching train while he was forty feet from the tracks of the railway company and while the train was at a distance of nearly eight hundred feet, that he could have seen the train all the time while he traveled that forty feet, at the rate of speed the train was going and he was traveling. The train therefore was in full view for a considerable space of time, an abundance of time for him to have stopped his horse. There was nothing to divert his attention in either direction. All the evidence we have shows that he did not look at all and that with the curtains down he drove deliberately upon the tracks of the company.

How can it be said under these circumstances that he exercised due care and that the verdict of the jury is justified by the evidence ? The judgment of the court below must be reversed upon that ground also. For these reasons the judgment of the common pleas court is reversed and the cause remanded for a new trial.  