
    No. 693
    PITTSB. C. C. & ST. L. RY. CO. v. KILPATRICK, Adm.
    Ohio Appeals, 4th Dist., Montgomery County
    No. 609.
    Decided September 6, 1924
    1245. VERDICTS — $9,000.00 damages for death of wife in collision between automobile and cut of cars unlighted at railroad crossing not against evidence.
    801. MUNICIPAL LAW — Ordinance requiring a cut of cars on. railroad crossing at night to carry light in front, held valid.
    359. DEATH — Marriage of surviving spouse held not admissible to mitigate damages in action for death by wrongful act.
    Attorneys — Matthews & Matthews, Dayton, for Railway Co.; Frank S. Monnett, Columbus, and I. L. Holderman and Mattern, Brumbaugh & Mattern, Dayton, for Kilpatrick.
   BY THE COURT.

Epitomized Opinion

Published Only In Ohio Law Abstract

This was an action for wrongful death. The deceased was killed by a collision between an automobile and cut of freight cars backed across a street in Dayton. The deceased was a passenger in the automobile. The accident happened shortly after 11 o’clock p. m. A watchman was maintained at the crossing until 11 o’clock p. m., but there was no watchman on duty at the time of the accident. The evidence was in conflict as to whether there were any lights on the front end of the moving cars. During the trial the court admitted evidence of a city ordinance which required that lights be placed on the front end of moving ears when they were about to cross a street at night. The court, excluded evidence of the remarriage of plaintiff. The jury returned a verdict for Kilpatrick in the sum of $9,000, whereupon defendant prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

1. A municipality has a right- to regulate the use of the public street and the manner in which cars are backed or pushed across .such street. Therefore, an ordinance requiring a cut of cars to carry the lights at night is not unreasonable or improper.

2. In an action for wrongful death, evidence of the remarriage of the surviving spouse is not admissible for the mitigation of damages. Davis v. Guarnieri, 45 OS. 470, followed.

3. The verdict held not manifestly against the weight of the evidence.  