
    Stugard, Admr., v. The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co.
    
      Reversals — Cotirt of appeals — Weight of evidence — Divided court— Section 6, Article IV, Constitution, 1912 — Journal entry controls, when — Railroad-crossing accident — Negligence and contributory negligence, jury questions — Motion to direct verdict —Final judgment erroneous, when.
    
    (No. 14744
    Decided June 17, 1915.)
    Error to the Court of Appeals Hamilton county.
    This was a proceeding brought in the superior court of Cincinnati by George Stugard, as administrator of the estate of John B. Vastine, deceased, to recover damages for the wrongful killing by the defendant of the deceased.
    The petition averred that in April, 1912, while Vastine was driving a wagon loaded with lumber over and across the track of the defendant, upon Erie avenue in the city of Cincinnati at the intersection of said track, through the negligence and carelessness of the defendant and its employes an engine and train of cars were run on said track over said crossing, striking the wagon which decedent was then driving, throwing the wagon and the lumber, with which said wagon was loaded, on to the decedent, throwing him to the ground and inflicting injuries upon him from which he died on the 4th of May following; that the avenue is a much-traveled thoroughfare in the city and that the crossing thereof with the track of the defendant’s road was exceptionally dangerous, all of which was well known to the defendant, but that defendant negligently failed to protect those approaching and using said crossing by watchmen, gates, alarm bell or in any other way; that the view of approaching trains at said crossing was obstructed and defendant negligently caused and permitted cars to be left standing on sidetracks adjacent to said crossing, ■ which obstructed the view of the same and its approaches to defendant’s servants operating engines over said tyack and the view of an approaching train to persons on said highway approaching the crossing; that the engine and train were being negligently run at a high, dangerous and excessive rate of speed when approaching and going over said crossing and without sounding any warning of their approach by bell, whistle or otherwise.
    The answer of the defendant admits that it is a corporation organized and operated as alleged, and denies each and every other allegation in the petition.
    It further alleged that the death of the decedent was caused by his own negligence, in that he negligently failed to observe the approaching train before he approached or went on the track, when, by the exercise of ordinary care, he could have done the same in time to have avoided injury.
    The reply denied any negligence on the part of Vastine.
    There was a verdict by the jury in favor of the plaintiff, upon which judgment was entered by the superior court.
    
      At the conclusión of the plaintiff's evidence the defendant moved the court to direct a verdict in favor of the defendant, which was overruled. This motion was renewed at the conclusion of all the evidence and was likewise overruled. Thereupon a motion was made to enter judgment in favor of the defendant, notwithstanding the verdict. This was overruled.
    In an error proceeding in the court of appeals that court reversed the judgment of the court below and entered final judgment for the railway company. This proceeding is brought to reverse the judgment of the court of appeals and affirm that of the superior court.
    
      Mr. T. J. Edmonds; Mr. John E. Shepard and Messrs. Nelson & Hickenloopeiy for plaintiff in error.
    
      Messrs. Maxwell & Ramsey, for defendant in error.
   By the Court.

It is urged by the plaintiff in error that the judgment of the court of appeals should be reversed because an examination of the record will disclose that the decision of that court, in reversing the judgment of the court below, was based upon the weight of the evidence and was rendered by a divided court, in contravention of the provision in Section 6 of Article IV of the Constitution, as amended in September, 1912, that “No judgment of a court of common pleas, a superior court or other court of record shall be reversed except by the concurrence of all the judges of the court of appeals on the weight of the evidence.”

It appears from the record that on June 19 Stugard, administrator, filed a motion for a judgment of affirmance by the court of appeals upon the decision and opinion “heretofore rendered by the majority of this court in this cause and the dissenting opinion of Hon. Oliver B. Jones, copies of which opinions are hereto attached and made part hereof,” and further sets out the constitutional provision referred to.

It also appears from the record that on the following day the court entered its judgment reversing the judgment of the superior court. The pertinent part of the entry is as follows: “Upon consideration whereof the court finds that there was error in the proceedings and judgment of the superior court of Cincinnati in this, to-wit: That the court erred in overruling defendant’s motion made at the conclusion of all of the evidence to direct the jury to return a verdict for the defendant.” There is not included in the court’s entry anything whatever to indicate that its judgment was not concurred in by all the members of the court. So far as the record goes, all three of the judges may have concurred in overruling the motion of Stugard, administrator, for judgment of affirmance. The entry simply shows that the judgment was the judgment of the court of appeals, and the presumption is that it was rendered in accordance with the law and in accordance with the provisions of the constitution. We are not at liberty to find that this was not done from the statement of extraneous facts in a motion filed by one of the parties. In a proper case a party' could preserve his exception to the action of the court by a bill of exceptions, duly authenticated, or could procure the statement of the facts'in the entry of the court, and if the court should refuse such bill or such statement in the entry it could be compelled by mandamus to correct its-record.

It will be observed that the judgment of the court of appeals is based on its finding that the superior court erred in overruling the defendant’s motion, made at the conclusion of all of the evidence, to direct the jury to return a verdict for the defendant. We. think this was error. An examination of the record shows that there was evidence tending to show that the crossing was a much-traveled one and that there was neither gate, crossing bell nor watchman; that the train was moving at a high rate of speed, which the jury might properly have found to be negligent, when considered in connection with the obstructions preventing a clear view of the track and with the cut and curve a comparatively short distance away. There was also evidence tending to show that no whistle that could be heard at the crossing was sounded'.

With reference to the question of contributory negligence, we think it clear that it cannot be said to be undisputed, or to be the necessary conclusion from conceded facts, that the decedent was guilty of contributory negligence. It was undoubtedly the duty of the decedent to look and listen for the train before he attempted to cross, and to do this a sufficient distance from the tracks, so that he could allow the train to pass without peril to himself if it should be coming. Our attention has not been called to any evidence in the record which shows that the decedent did not perform this duty. It might well be argued that, in the light of all the circumstances which are shown by the evidence, the inference could be properly drawn that he did not do so. But it is the function of the jury to draw this inference and to find this ultimate fact.

In Cavey, Admx., v. Iliff et al., 84 Ohio St., 456, the circuit court reversed the judgment of the common pleas court on the ground that it erred in overruling the motion of the defendants, at the conclusion of the evidence, to arrest the case from the jury, and entered final judgment in the case. This court reversed the final judgment and remanded the cause for a new trial. The entry was as fol: lows: “This court, finding from the record that the judgment of the circuit court is in effect an adjudication that the judgment of the court of common pleas is against the weight of the evidence, the judgment of reversal is affirmed. But this court being of opinion that the cause should be submitted to a jury, the final judgment rendered by the circuit court is hereby reversed.”

So in this case, it being disclosed by the record that the judgment of the court of appeals is, in effect, a finding that the judgment of the superior court is against the weight of the evidence, the judgment of the court of appeals rendering final judgment is reversed, its judgment reversing the judgment of the superior court is affirmed, and the cause is remanded to the superior court for further proceedings according to law.

Judgment accordingly.

Nichols, C. J., Johnson, Wanamaker, Newman and Matthias, JJ., concur.  