
    Blancke, Admx., v. The New York Central Railroad Co.
    
      Negligence — Railroads — Regulation of speed in municipalities — • Section 3781, General Code — Validity of legislation regulating speed — Questions for jury — Violation of duty and proximate cause ■ — ■Directed verdict erroneous, when.
    
    1. Section 3781, General Code, authorizing councils by ordinance to regulate the speed of locomotives and cars within municipal limits, applies to places within municipal limits other than public crossings. (Cleveland, Akron & Columbus Ry. Co. v. Workman, Admr., 66 Ohio St., 509, distinguished.)
    2. A statute or ordinance regulating speed, adopted pursuant thereto, is a valid exercise of the police power, unless it clearly appears that such unduly restricts speed within a municipality, or unreasonably limits the speed in open or outlying sections of the municipality. '
    3. Where the pleadings state facts disclosing a common-law duty due plaintiff’s decedent, and evidence has been offered supporting such issue, it .is for the jury to determine whether that duty was violated and whether such violation was the proximate cause of the injury.
    (No. 16708
    Decided July 12, 1921.)
    Error to the Court of Appeals of Erie county.
    This is a suit for personal injuries resulting in the death of Harold E. Blanche while serving as a member of Company B of the 6th Ohio Infantry and guarding one of the defendant’s bridges on the 14th day of April, 1917.
    The petition alleges that prior to this date the United. States government had directed Blancke and other members of his company to guard and protect the railroad bridge of the defendant railroad in the vicinity of Port Clinton; that his duties required him “to be upon the right of way of said defendant company and in the vicinity of said bridge in order to protect the same and other property of said defendant company. That said defendant railroad company had full knowledge that said Harold E. Blancke and other members of said Company were doing duty on said right of way * * * for the purpose of protecting said bridge and other property of said defendant company.” It is also alleged that owing to the dangerous condition of the right of way at this point the railroad company should have sounded warnings and alarms so as to warn the decedent and his associates in ample time to get out of the way of passing trains. The petition also alleges that the village council of Port Clinton had adopted an ordinance, regulating' the speed of locomotives and railroad cars, and making it unlawful for the railroad company to run them over their tracks within said village at a greater speed than fifteen miles an hour. The petition further alleges that Blancke, while in the performance of his said duty, was run over by the defendant’s train of cars, going at a dangerous rate of speed, and in excess of fifteen miles an hour, without giving proper or suitable warning or alarm; that while said train was passing the decedent some part of the train, or its contents projecting therefrom, struck him with such force as to cause his death- The petition then alleges that the defendant company had full knowledge that the members of this company were doing duty in the vicinity of said bridge, and on the right 'of way of the defendant ; that defendant failed to give proper warning or signal to. the decedent; and that because of the dangerous and excessive speed and failure to give such signals the defendant was injured.
    The answer of the defendant is somewhat voluminous, but except as to its general denials of negligence it pleads affirmatively facts which it is alleged disclose that Blancke died from injuries which were purely accidental and were caused by his own negligence contributing to the result. The defendant’s negligence is denied, but the answer admits that Blancke was a member of Company B, 6th Ohio Infantry, and had been directed by the United States government to guard and protect the defendant’s railroad bridge at Port Clinton, and that his duties required that he and other members of the company “should at times be upon the right of way of the said defendant in the vicinity of said bridge in order to perform said duties as required by his orders; that defendant knew that members or a squad composed of members of said company and regiment were engaged in the performance of said duties in the vicinity of said bridge.”
    On the trial, plaintiff below, offered an ordinance of the village of Port Clinton which made it unlawful to' run a locomotive or car at a greater* speed -than fifteen miles per hour within the village of Port Clinton. This accident happened in the village. The trial court excluded the ordinance over the objection of the plaintiff. At the close of plaintiff’s evidence the defendant moved for an instructed verdict. The trial court sustained the motion and instructed the jury to return a verdict for the defendant. The action and judgment of the trial court were affirmed by the court of appeals.
    Whereupon error was prosecuted to this court.
    
      Mr. John F. McCrystal, for plaintiff in error.
    
      Messrs. King, Ramsey, Flynn & Pyle, for defendant in error.
   Jones, J.

It appears from the charge of the court in its direction to the jury to return a verdict for the defendant that the ordinance of the village of Port Clinton, regulating the speed of trains and prohibiting them from running more than fifteen miles an hour, having been excluded, there remained under the undisputed facts no testimony of the defendant’s negligence upon which the plaintiff could go to the jury. The charge in that connection further discloses that the trial court was evidently of the opinion that the injury was caused by the contributory negligence of the decedent. In his charge, directing a verdict, the trial judge said:

“This decedent was told the train was coming, and he was told to get off the track, and he did get off the track; so that warning and lights or anything of that kind wouldn’t have done him any good. He was seen as the locomotive passed standing where or about where he got off the track. The train went on and afterwards he was found dead or nearly dead. There is nothing to show what struck him, although the inference might fairly arise that he was hit by a train; but if he had kept a reasonable distance from the train and track he wouldn’t have been hit. He got so close that he was hit by the train. *' * *
“Now, that is the situation we have here. If the ordinance doesn’t apply, they could run their trains at any speed they saw fit; at least so far as-any duty was owing to a man who stood by the side of their track and was watching the train go by. Substantially the same situation would be presented if one of the jurors here were standing on the track out at the Lake Shore crossing on Columbus Ave. and saw a train coming and got ofif the track far enough so that part of the train passed without' injuring him, and then while the train was passing got so close that some part of the train hit him, he couldn’t recover because it would be his own carelessness.”

Two witnesses testified that the train traveled at the rate of thirty miles an hour in approaching the bridge. The ordinance of the village of Port Clinton limited the speed to fifteen miles per hour within the village. The trial court excluded the ordinance, it is said, on the authority of Cleveland, A. & C. Ry. Co. v. Workman, Admr., 66 Ohio St., 509, and evidently held that the statute and ordinance imposed no duty upon the part of the railway company, in respect to speed, in favor of those not upon public crossings. The case referred to does decide that the crossing-signal statutes (Section 8853 et seq., General Code) do not inure to the benefit of persons who are on the track and not at the crossing, but this decision was arrived at by holding that the obvious construction of those statutes applied only to public crossings, and the court so states in its opinion, ryhere, at page 542, it is said: “The statute obviously is not for the protection of persons who are not crossing the track or about to do so * * *. The signals are not required at any other time. This is the construction which has been adopted in several jurisdictions where the question has arisen.” The section of the statute there involved applied to the requirement to give signals when approaching a public crossing, and it was construed so as to impose upon a defendant the duty of complying therewith for the protection of those using the crossings. However, the speed statute involved in this case needs no construction. Its language is clear and comprehensive and authorizes municipalities to regulate speed, not only at public crossings, but within the corporate limits. The section follows: “Sec. 3781. When a railroad track is laid in a municipal corporation, the council by ordi•nance may regulate the speed of all locomotives and railroad cars within the corporate limits, but * * * in villages * * * it shall not require a less rate than eight miles an hour.”'

Here it is not a question of statutory construction, but of legislative and municipal power. The legislature has authorized the regulation of speed within the corporate limits, and, responding to that authority, the municipality, by ordinance, provided that such speed should not exceed fifteen miles an hour.

“City ordinances limiting the rate of speed of trains within the city limits have been sustained even if thef to some extent impair the ability of the corporation to give its patrons satisfactory service, if they are reasonably necessary for the protection of the public. Such an ordinance applies to the operation of trains anywhere within the city limits, whether they are passing along or across public streets or are wholly upon the railroad’s private right of way.” 19 Ruling Case Law, 855; Chicago & Alton Rd. Co. v. City of Carlinville, 200 Ill., 314; Washington & So. Ry. Co. v. Lacey, 94 Va., 460; Whitson v. City of Franklin, 34 Ind., 392; Knobloch v. C., M. & St. P. Ry. Co., 31 Minn., 402; Prewitt v. Mo., K. & T. Ry. Co., 134 Mo., 615, and Jackson v. Kansas City, Fort Scott & Memphis Rd. Co., 157 Mo., 621.

The foregoing cases are authority for the principle that under ordinances of a character similar to that adopted by the village of Port Clinton a valid exercise of the municipal police power, regulating the speed of • trains, extends to places within the municipal limits other than public crossings. This power is exercised for the safety of the public, and, primarily, the character of the regulations, including the places within the corporate limits where the speed is to be regulated, is committed to the legislative authority of such municipality. The presumption of law obtains that such regulation is necessary and reasonable, and before the court will interfere with the discretion committed to the public authorities it must clearly appear that the exercise of such power upon the part of the, municipality is unreasonable or unnecessary for the public safety. And only where it is shown clearly to the court that the exercise oí this power is unreasonable and arbitrary, unduly restricting the speed of trains within the corporate limits, or where it unreasonably limits the speed of the trains in open or outlying sections of the municipality where the public safety is not affected, may the court declare such regulatory ordinance unconstitutional and void.

The record does not disclose any facts which tend to show that the ordinance limiting the speed to fifteen miles within the village of Port Clinton was an unreasonable exercise of the police power vested in the village council. Having proven that the speed of the train was thirty miles an hour, the ordinance should have been admitted; though it still remained to be proven that the excessive speed was the proximate cause of the accident. That, including the question of contributory negligence, was for'the jury to determine.

The trial court was of the opinion that having excluded the ordinance, the evidence disclosed no violation of any duty to plaintiff upon the part of the defendant. Before a plaintiff can recover he must show that the defendant neglected some duty or obligation either existing at common law or imposed by statute, which it owes to him. Irrespective of any duty imposed under the ordinance, the petition stated sufficient facts to support a common-law duty due to decedent. The petition alleged that the decedent and other members of Company B were guarding the bridge and right of way of the defendant with its full knowledge; that on the night when the accident occurred, and while going at a dangerous rate of speed, the defendant failed to give decedent any warning or alarm of its approach. The defendant’s answer admits that the company, with the decedent as one of its member^, was guarding its railway bridge, and vicinity, under orders of the United States government, and that it knew that the duties of the decedent required him to be upon the right of way of the defendant in the vicinity of the bridge. The decedent was not a mere licensee. Such being the case, it was a question for the jury to determine whether under the admissions of the defendant and the circumstances detailed in the evidence ordinary care had been exercised by the railroad company in view of the situation thus disclosed by the pleadings and evidence, and whether its lack of exercise was the proximate cause of the injury.

The only serious question affecting the right of the plaintiff to recover is that of contributory negligence, and the remarks of the court in directing the verdict for the defendant, at the close of the plaintiff’s evidence, indicate that the trial court felt that the decedent’s conduct. precluded a recovery. The night was dark, and the exact manner in which the decedent came to his death is not apparent from the evidence, but it does appear that when the accident happened Blanche was at the time on his way to relieve the guard, who, on account of the darkness, was unable to see who it was, and accordingly challenged him and ordered him to advance and be recognized. Whether Blanche came to his death by being struck with some projecting part of the train in passing, or whether he stumbled upon the' interlocking rods paralleling the track, is uncertain. There is no witness who testified positively as to the manner of his injury, but'it is reasonably certain that the cause of his death at the time he responded to the challenge was the passing train of the defendant. Under the circumstances the reasonable inference might arise that the decedent was himself exercising ordinary care, especially in view of the fact that two of his superior officers testified that they heard no signal given by the approaching train, although its headlight could have been seen. There is testimony in the record tending to show that one Patterson, the guard whom Blancke was advancing to relieve, seeing the dangerous situation in which Blancke was, said to him, “for Christ’s sake get off the track.” Whether this admonition was given in time, or whether Blancke disregarded it, and whether these or other facts justified the conclusion that the decedent himself contributed to his death, were questions which should have been submitted to the jury..

For the reasons given the judgment of the lower courts will be reversed and the cause remanded to the common pleas court for a new trial.

Judgment reversed.

Johnson, Hough, Wanamaker, Robinson and Matthias, JJ., concur.

Marshall, C. J., dissents.  