
    Giddens v. The Cleveland Ry. Co.
    (Decided November 10, 1930.)
    
      Mr. Harry G. GaJm, for plaintiff in error.
    
      Messrs. Squire, Sanders & Dempsey, for defendant in error.
   Cline, J.

Plaintiff in error, on November 14, 1927, was a mail carrier walking westerly on the northerly sidewalk of Quincy avenue in front of the defendant’s street car barns, which are located just east of Eighty-Ninth street. The railroad company was operating an electric mule or puller in the attempt to draw a street car out of the car barns and yards, and, in the act of so doing, the mule and street car, which were joined by a coupler about five feet long, blocked the sidewalk. The coupler stood across the sidewalk and had been there for about five minutes. Another pedestrian, whose name is unknown, came from the opposite direction to that in which the plaintiff was going, went between the cars, and got over the coupler safely.

The defendant frequently had blocked the sidewalk at that place in the same manner, and the plaintiff had gone over the coupler previously in order to continue his passage while the street was so blocked. On this occasion, the plaintiff while crossing between the cars was injured by the starting of the cars, and began an action to recover for the loss he sustained in consequence of his injuries.

The plaintiff’s petition charged that the defendant was negligent as follows: In starting the street car after it had been directed to hold it; in not giving the plaintiff any warning that the defendant was to start its street car; in not keeping a proper lookout for the presence of the plaintiff at said time and place; and further charged that the defendant saw, or ought to have seen, the plaintiff in a position of danger, and was negligent in starting the street car up without giving plaintiff a chance to escape from his dangerous position.

At the close of plaintiff’s evidence the trial judge granted a motion to direct the jury to return a verdiet for the defendant, which was accordingly done.

The evidence appears to the majority of the court to present the following state of facts:

Defendant street car company was blocking a public thoroughfare, which it had been customary for it to do in the operation of its business. The street car company knew and should have known that it was the habit and custom of people walking on Quincy avenue to pass between the cars which were blocking the sidewalk. Prior to this particular day the plaintiff himself on various occasions had passed between the cars blocking the sidewalk, and on the particular occasion now under consideration the cars had blocked the sidewalk for about five minutes, and another pedestrian had passed between the cars and over the bar in safety. The plaintiff states that as he crossed over he looked at the employee of the defendant directing the motor, and he said, “Hold it,” and further states, “I looked at him and did like that myself [indicating the giving some signal that he desired to cross over] and he [the employee of the company] said nothing.” When this operation took place, it must have been apparent that both of the employees of the company, the one on the street car and the one on the motor, saw the plaintiff about to go between the cars in order to pass over the blocked sidewalk.

The plaintiff was asked how the accident occurred, and his testimony is as follows:

“I stood there what I considered reasonable length and I was wondering whether to step over, I have stepped over before — whether to step over or wait, so in the meantime fellow coming on the other side, he jumps through, so I figured if he could get through, I could, I was standing there. * * *
“I looked at the fellow directing the motor, and he said, ‘Hold it,’ and I looked at him and did like that myself, (evidently making a signal,) and he didn’t say anything. I just grabbed the bar like that, like somebody would jump sideways, and I jumped and the car started up and struck me here and I fell this way. ’ ’

The plaintiff testified further:

“Q. Just before you took hold of the bar did you look up to where the man in the mule was located? A. I looked at the man in the rear of the car, and I looked then other way, as man would do when he has not very much time to jump. I looked, satisfied they both saw me. In figuring they would be there, I jumped — Objection.
“The Court: 1't is hard to tell what he means. I presume it means — I do not want to — I think it may stand with the jury taking the word ‘ satisfied, ’ being satisfied, to mean that in my judgment both of them looking at me, I could jump. ”

One of the witnesses for the plaintiff, a Mrs. Barry, testified as follows:

“Why, trailer had backed out of the car barn and it was standing there at least five minutes and I see the gentleman when he went to go across, step across that bar and when he went to step across, the trailer jerked up like that (indicating) and it just threw him over on his side, and he jumped over on his stomach.”

Again Mrs. Barry testified as follows:

“Q. And just when did you see the dinky start forward toward Mr. Giddens? A. Just the time he got over — just-as he got over.
“Q. When he got on the bar? A. Yes.”

The evidence which the court was required to consider on the motion to direct a verdict should be construed in the light which is most favorable to the plaintiff. The question arises as to whether or not on such evidence there was a question for the jury, or whether it was the duty of the court to direct a verdict, as was done in this case.

The statements of the trial judge to the jury that the plaintiff was satisfied that both of the employees of the railroad company were looking at him when he went between the cars leave a reasonable conclusion to be drawn that the employees must have known he was between the cars when they started the car in operation.

The syllabus in the case of Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683, reads as follows:

“Whenever, from conflicting evidence of the same witness or of different witnesses, it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury.”

There is a sharp dispute between the parties as to the negligence of each of the parties. Each counsel is very positive in his statement that the court was wrong or the court was right.

It will not be questioned, in view of the width of a street car, that after one walks between two standing cars he will be lost sight of by the operatives of the car. The record clearly shows that the two cars were standing still and had been static for some time when the plaintiff went between the cars for the purpose of crossing over. The record shows that while plaintiff was crossing over the bar (whether he had hold of it or not is disputed), the street car company without warning or notice to the plaintiff, after one of its operatives gave the order to “hold it,” and after both saw him go between the cars for the purpose of passing over, started up its cars, injuring the plaintiff.

During the argument counsel for the railroad company conceded that if the company knew or in the exercise of ordinary care should have known that plaintiff had placed himself in a place of danger on the bar separating the cars, or between the cars, and while he was in that dangerous position had started up its cars without giving the plaintiff an opportunity to escape, the defendant company would have been guilty of negligence and the last clear chance doctrine would have been applicable. That situation does appear from the record. The evidence shows that the cars were static at least five minutes; that one employee of the railroad company called out, “Hold it,” from which it might reasonably be inferred that the cars were to be held in their static position; and that both of the railroad employees saw the plaintiff, from which it is likewise reasonable to infer that both of the railroad men saw the plaintiff go between the cars. There is no doubt that the car started while the plaintiff was between the cars in a dangerous position. No warning or signal was given by the railroad company that the car was about to be started. Because of the starting of the car, and because of these conditions which existed, which are shown by the record, there was at least a scintilla of evidence to be presented to the jury, and such a state of facts existed that reasonable minds might easily differ concerning those facts or the inferences to be drawn from the evidence. In such a state of the evidence it was the duty of the court to submit the question of fact to the jury.

Even though there was doubt in the mind of the court as to whether or not the plaintiff was negligent, it was his duty to -submit the facts in this case to the jury, and not to usurp a power which by the law of this state has been for many years within the province of the jury.

In the case of West v. Gillette, 95 Ohio St., 305, 116 N. E., 521, the syllabus reads:

“Where the motorman of a street car, in the performance of his duty to keep watch to learn of danger to persons who may be crossing the track on a public street crossing, discovers that the driver of a smaller vehicle is about to cross the track in front of his car, it is his duty to use ordinary vigilance and care to stop or check the car in order to avoid a collision.
“Where a collision occurs and such driver is injured and the undisputed evidence. shows that the motorman actually saw such vehicle and had it continually in view for a considerable distance from the crossing, it is for the jury to determine whether he exercised such vigilance and care in the circumstances ; and the fact that the driver may have been originally negligent in the manner of going on the crossing will not, as matter of law, defeat his right to recover for the injury, if the motorman has not used such vigilance after discovering him.”

Erie Rd. Co. v. McCormick, 69 Ohio St., 45, 68 N. E., 571; Cincinnati, H. & D. Rd. Co. v. Kassen, 49 Ohio St., 230, 31 N. E., 282, 16 L. R. A., 674, and Lake Erie & W. Rd. Co. v. Mackey, 53 Ohio St., 371, 41 N. E., 980, 29 L. R. A., 757, 53 Am. St. Rep., 641, are all cases in which persons about railroad trains had gotten themselves into dangerous positions by their own carelessness, and the court held that under those circumstances the railroad company was negligent if it did not exercise due care for the safety of such negligent persons.

In the plaintiff’s view of the case here under consideration, the doctrine of last clear chance, which was pleaded, was in the case for submission to the jury. The last clear chance doctrine does not exclusively depend on time. Although time may be an element to determine whether the concurring negligence of the parties exists under a given state of facts, yet viewed from the plaintiff’s standpoint, and from his evidence, most favorably construed, which the court is required to do on a motion, the evidence shows that while the car was static, while the two employees of defendant were looking at the plaintiff, he put himself in a place of danger, and while in that place of danger, without warning or signal, without giving the plaintiff an opportunity to escape, the railroad company started its car injuring the plaintiff.

While this action took but a short time, the majority of the court is of the opinion that there was no concurrence of negligence of the plaintiff and the defendant at the time the injuries occurred.

It is claimed in argument that the defendant railroad company during the trial of the case asked the court to direct a verdict in its favor, because the plaintiff had his hands upon the coupler or bar at the time he was injured, and was therefore a trespasser, and that upon the ground that the plaintiff was a trespasser the court directed a verdict for the defendant. The record does not show upon what ground the court did direct a verdict, but if that was the ground upon which the trial court acted the defendant seems to have abandoned that claim in this court, and it relies wholly upon plaintiff’s contributory negligence to sustain the action of the trial court in that respect. We do not believe that any state of facts existed in this case which showed plaintiff to be a trespasser.

The question also arose as to whether it was the duty of the defendant to give a signal or warning to the plaintiff before defendant started its car. This, likewise, under the circumstances, was a question which the jury should have passed upon, and the action of the trial judge in refusing to permit any evidence as to whether or not the plaintiff gave a signal or warning to be submitted to the jury was clearly erroneous.

The action of the trial court in directing a verdict in this case is indicative of the tendency of some judges of this day. The great majority of the judges of our courts are able and fearless, and certainly all of them honest, and they attend to their duties with that high devotion to public service which has brought to the bench such great honor and respect. There is a tendency, however, which has been augmented in recent years, on the part of some judges at least, to usurp unto themselves the function of the jury to determine contested questions of fact. Such judges following what they believe to be a trend of public sentiment, or following a personal belief grounded in their previous environment, have persistently assumed the duty which the law for many centuries has placed in the hands of the jury of determining disputed questions of fact.

A trial by a jury is not to be preserved simply because the institution is aged, and its origin almost lost in the mists of antiquity, but the fact that the jury system has survived through all these centuries indicates that it is believed to be a real bulwark of the people against judicial oppression, and is believed to have become an agency which preserves to them life, liberty and property.

The trend of the attack on jury trial has taken several forms, one of which is the suggestion that the jury be entirely abolished in all civil cases; another of which is that the jury be abolished in contract cases only, and be permitted to serve in tort cases; another is that the courts be permitted to advise the jury of the weight and effect of evidence, and to discuss the credence to be given to the various witnesses, as may be done in the federal courts today, provided, of course, that the court informs the jury that his suggestions are merely his “opinion,” by which the jury is not bound; and still another is to take away from juries the right to decide contested questions -of fact by the direction of verdicts by the courts.

No one has suggested, so far as I am able to learn, that the jury trial be abolished in criminal cases. If the jury is of value in criminal cases, then it should be of value in tort cases. If it is of value in tort and criminal cases, then it should afford the same protection to the public in contract cases, and if all these elements tend to retain the respect of courts in the minds of the people, then the action of courts in erroneously usurping the function of juries cannot strengthen the jury system, but will tend to weaken it. Twelve men and women drawn freshly from the various walks of life, with their varied experiences, educations, trainings, and contacts with other men and women, knowing and feeling the same emotions, sentiments, beliefs, and ideals of the people, are more able correctly to determine questions of fact than any judge on any bench, no matter how wise or learned he may be.

Experience, after all, is the greatest teacher. Upon experience for centuries the world lived and thrived, and when we take from, our courts the experience of jurors, we are taking from the courts that element of strength and respect which has made the courts of this country revered and admired by our people.

Joseph H. Choate, one of the most learned lawyers of America, more than thirty-two years ago, in an address before the American Bar Association, said:

‘ ‘ So let me say, and again upon the same authority of personal experience and observation, that for the determination of the vast majority of questions of fact arising upon conflict of evidence, the united judgment of twelve honest and intelligent laymen, properly instructed by a wise and impartial judge, who expresses no opinion upon the facts, is far safer and more likely to be right than the sole judgment of the same judge would be. There is nothing in the scientific and technical training of such a judge that gives to his judgment upon such questions superior virtue or value.”

The layman who comes to court with his only lawsuit is burdened with one of the important affairs of his life; it is an event which he will discuss as long as he lives, and the judge, the lawyers, and the witnesses present to him a living, moving drama. New people have more than one lawsuit in a lifetime ; most, fortunately, have none. The honesty of the jury is seldom questioned by litigants, but if the verdict were rendered by a judge, how quick and how prone they would be to criticize unjustly.

There are many cases in which it is the duty of the judge to direct a jury to return a verdict for one party or the other, but these cases usually are not difficult to determine. Where there is no question of fact to be submitted, or where under the law the proof of the undisputed facts gives no rise to a cause of action, the case cannot under our law be submitted to the jury; but where there is a scintilla of evidence to support an issue of fact giving rise to a cause of action under the law, the right to determine that issue is with the jury and not with the court.

This dangerous tendency to destroy and weaken trial must not further be advanced or the respect of the public for the courts will thereby be weakened, and the great institution of our judicial system, which, in the last analysis, preserves the public from the tyranny and oppression of executive and legislative, and protects the constitutional rights of the public, will be placed in great danger of losing its position as one of the finest achievements of onr complex social experience.

The judgment of the lower court is therefore reversed for error in directing a verdict at the close of the evidence of the plaintiff, and for error in excluding evidence offered by the plaintiff of the omission of the defendant to ring a gong, and the case is remanded for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

Levine, J., concurs.

Vickery, P. J.,

dissenting. My associates having concluded to reverse the judgment of the common pleas court for error in directing a verdict for the defendant at the close of the plaintiff’s testimony, I feel it my duty to dissent from such judgment and will now give my reasons therefor.

It seems that the Cleveland Railway Company have a ear barn at East Eighty-Ninth street and Quincy avenue, and the tracks run from the street railroad in the street across the sidewalk into the car barn, and it is necessary, in the course of their business, to use what they call an electric mule to shove the cars back and forth, and on this particular day when this accident occurred, at about 6 o’clock in the evening, there was a motorman running one of these electric mules to which was attached a car belonging to the railway company. It was switching and, in order to do so, had to come out across the sidewalk. At the time of this accident this mule was attached to one of the cars of the railway company by a bar five to eight feet long. The bar was in the coupler of the mule and the coupler of the car, and it was stretched across the sidewalk, the mule out towards the street and the car in towards the car barn, and this bar was about three feet above the sidewalk. There is a dispute in the evidence as to whether the car was moving or standing, but the plaintiff says that it was standing; that he came up and stood there for some time; that he saw a person who jumped over this bar and went on, and that he undertook to do the same thing, and from the evidence in the record he apparently put his hands on this bar, and then either slipped or stumbled and fell; and he fell on the street, and the car was moving, so he rolled himself over in order to get out from under the car, and in doing so his foot was caught in the switch and he was more or less injured. Later he brought this action.

A jury was impaneled and sworn, the plaintiff’s evidence was introduced, and then the motion was made to direct a verdict in favor of the defendant, which the common pleas court granted, and that is the error complained of, and my associates come to the conclusion that that directed verdict was erroneous and the judgment should be reversed.

Now it seems to the writer of this dissenting opinion that the record shows plainly and distinctly that the plaintiff was guilty of such contributory negligence as a matter of law as proximately caused his injuries; that the court was undoubtedly right in directing a verdict, the presumption of negligence not having been removed upon the part of plaintiff.

Now here was a dangerous situation. Other persons came up there and stood. One man, more agile perhaps than the plaintiff, succeeded in jumping across this bar, and so the plaintiff thought he could, and perhaps because he was not so spry, or because he did not have time, he was caught, slipped or fell, and was injured.

It must have been perfectly apparent to anybody that here was a situation that was dangerous and that when a man undertakes to go across a bar of that kind he takes his life in his own hands. It was perfectly apparent to anybody that this car attached by the bar to the mule might be moving any instant. Plaintiff himself says that he did not have much time, because he had to jump quickly; and one or two witnesses testified that another man was spry enough to get across. The plaintiff either misjudged the movement of the car or his own spryness, and fell and was injured.

Now he says that the motorman saw him. There is no evidence in the record to show that the motorman supposed for a moment that the plaintiff would go into this place of danger. Suppose the motorman did see him. Other men were standing there awaiting the movement of this train, if you can call it a train, and how could the motorman have any idea that this man was going to do such a foolhardy thing as to jump across the bar when the car was in that position. Evidently the plaintiff was in a hurry, and saw one man succeed in jumping across, and decided to do the same thing, and, as already stated, misjudged either his agility or the time that the train was going to stand there. It could not have been over half a minute, a very short time at least, that he would have been compelled to stand there, and there does not seem to have been any such desperate need of hurry that he should have hazarded his life. I think myself that he is entitled to be congratulated in not having been more seriously hurt, in fact in not having lost his life.

This member of the court thinks that this record shows that the plaintiff was not entitled to recover and that the record shows that he was guilty of contributory negligence, that he took the danger upon his own head when he undertook to go between those cars and jump across this bar; and for that reason this member of the court thinks that the judgment of the court below should have been affirmed, and dissents from the judgment of the majority of the court.  