
    Truex, Appellant, v. The New York Central Rd. Co., Appellee.
    
    (No. 5642 —
    Decided January 28, 1958.)
    
      Messrs. Chamblin, Morgan S flunsinger, for appellant.
    
      Messrs. Wilson & Rector, for appellee.
    
      
      Motion to certify the record overruled, May 21, 1958.
    
   Petree, P. J.

This is an appeal on questions of law, and the assignment of error is as follows:

1 ‘ The court erred in directing a verdict in favor of defendant at the close of plaintiff’s case.”

Plaintiff, appellant herein, brought suit in the Common Pleas Court of Franklin County for personal injuries and damages to his motor vehicle arising out of an accident at a grade crossing where the tracks of the defendant, appellee herein, cross Hamilton Road in the eastern part of Franklin County. At the conclusion of plaintiff’s evidence, the trial court sustained the motion of the defendant for a directed verdict in its favor, upon the ground that the contributory negligence of plaintiff had been established as a matter of law.

It is not disputed that the intersection at- the time of the accident on March 31, 1953, did not contain automatic flasher lights or bells. There were the usual stationary signs indicating that there was a railroad crossing at this location. Plaintiff had been over the road before and knew of the existence of the crossing.

The evidence of the plaintiff is to the effect that it was daylight at the time of the accident; that he had been traveling 40 to 45 miles per hour prior to coming to the railroad tracks; that, as he approached the crossing, he was reducing speed to, roughly, 15 to 20 miles per hour; that he heard no whistle or bell from the approaching train; that his view was obstructed by a number of boxcars which were standing on the south track from a point at approximately 100 feet west of the intersection to several hundred feet west of that point; that his view was obstructed in such a manner that he could not see the approaching train until he was on the tracks; and that the train was moving pretty fast, the speed at one time being estimated by plaintiff to have been 60 miles per hour.

The evidence shows that the two rails of the south track were a little under five feet apart, and that there was a distance of seven feet between the north rail of the south track and the south rail of the track on which the train was proceeding.

Since the accident occurred outside a municipal corporation, the evidence does not raise the presumption that the plaintiff was exceeding any speed limit on Hamilton Road at the time of the accident.

In view of the plaintiff’s evidence that he did not hear any signals or bells, and that he did not see the train until ho was at or on the tracks due to the obstruction of a string of boxcars on the south track, he cannot be said to have been negligent as a matter of law in attempting to got on across the tracks when the train came into his view approximately 100 feet away. This is clearly a case for the jury under the ruling of the Supreme Court of Ohio in Cleveland. Cincinnati, Chicago & St. Louis Ry. Co. v. Kuhl, Aclmx., 123 Ohio St., 552, 176 N. E., 222, where the court used the following language in the syllabus:

“In an action for personal injuries arising out of a collision between a.n automobile and a backing engine at an intersection of a railroad and a highway, where the record tends to show that the view of such railroad crossing at certain points approaching the crossing is obstructed, and the record presents no evidence tending to show that a traveler in such automobile upon the highway did not look and listen for the train, the question of contributory negligence becomes one of fact for the jury.”

We find that the court erred in directing a verdict. Under the state of the record, the matter should have been submitted to the jury. Therefore, the judgment is reversed and the cause remanded to the Common Pleas Court for a new trial.

Judgment reversed.

Bryant and Miller, JJ., concur.  