Opinion
No. 31697
Decided December 14, 1949.
Negligence — Railroads — Highway grade-crossing sign with large and distinct letters — Liability for failure to erect — Section 8852, General Code — Necessary to affirmatively show that failure proximately caused death — No inference motorist would have observed sign if lettering distinct, when — Death not proximately caused by railroad's failure to distinctly letter sign — Proximate cause a question for court, when.
1. To establish liability on the part of a railroad company for the death of a person struck by a train of the company at a highway crossing, on the ground that such company failed to comply with Section 8852, General Code, requiring the erection of a sign with large and distinct letters at points where the tracks of the company cross a public road at grade, it must be affirmatively shown that such failure upon the part of the company was the proximate cause of the death.
2. Where a railroad company erected a sign at a point where its tracks cross a public road at grade, as required by Section 8852, General Code, but the lettering of such sign has become indistinct, no inference can be drawn that a motorist operating an automobile over such crossing who did not observe the sign structure would have observed it if the lettering of the sign had been distinct, in the absence of some evidence indicating that the motorist probably would have observed such sign structure if the lettering had been distinct, and the death of a person riding in such automobile under such circumstances by its coming into collision with a train of the company at such crossing was not proximately caused by the failure of the company to maintain large and distinct letters on such sign.
3. The question of proximate cause of a claimed wrongful death is ordinarily one of fact for the jury, but the burden of proof is on the plaintiff, and if there is no evidence to support the affirmative of that issue, such question becomes one of law for the court.
APPEAL from the Court of Appeals for Montgomery county.
This is an action for damages for the wrongful death of Imogean L. Cobb, Jr., originally against Beulah Marie Bushey, driver of the automobile in which the decedent was riding when it collided with a train of The Baltimore Ohio Railroad Company at a grade crossing on U.S. route 40 at Bachman in Montgomery county on July 1, 1946, about one o'clock in the afternoon.
The original petition alleged that, at the time of the collision, the decedent was being transported under an arrangement to pay part of the expenses of the trip; that Bushey's automobile was driven by her into the side of a train being operated across the highway by the railroad company; that there was a state highway marker on the south side of the highway west of the railroad crossing, warning of the approach to the crossing; that at the time of the collision a man was standing in the center of the highway near the railroad crossing waving his arms up and down; that the highway was marked on the paved portion thereof, warning of the approach to the railroad crossing; and that there was a railroad crossarm warning sign at or near the east side of the crossing on the south side of the highway. decedent was proximately caused by the following acts
The petition alleged further that the death of the and omissions of Bushey, to wit, (1) failure to maintain a lookout ahead, (2) failure to heed the whistle of the train by slowing down and stopping before reaching the crossing, (3) driving at an unreasonable rate of speed at the time and place, under the then conditions and circumstances, to wit, 55 miles per hour, (4) disregarding the warning signs and markers, (5) and failure to stop, look and listen before attempting to cross the railroad crossing.
About seven months later plaintiff filed an amended petition joining the railroad company as a defendant, in which he charges the same negligent acts on the part of Bushey and acts of negligence on the part of the railroad company as follows:
(1) Failure to maintain a railroad crossbar warning sign at the crossing so that the sign was visible to eastbound traffic on the highway, in that the sign had been allowed to deteriorate, becoming unpainted and unlettered; (2) failure of the operators of the train to maintain a lookout as the train approached the highway; (3) failure of the railroad company to sound the bell of its locomotive as it approached the highway; and (4) failure of the railroad company to guard the crossing with signal lights and to station a flagman at the highway crossing in advance of the crossing of the train.
The evidence disclosed that on the day in question the train of the railroad company consisted of 14 freight cars, a caboose, an engine and tender and was proceeding in a northerly direction over the crossing at a speed of between 12 and 15 miles per hour; that the front end of the engine was attached to the northernmost end of the line of freight cars; that the engine and tender were backing up, pulling the freight cars in a northerly direction; and that the length of the tender was 28 feet, 7 1/2 inches and the distance from the tender to the point occupied by the engineer in the cab of the engine was from three to five feet.
Bushey, seated in the front seat of her automobile with the decedent to her right, operated her automobile at the time of the collision in an easterly direction on U.S. route 40, at a speed variously estimated by witnesses from 40 to 60 miles per hour, into the side of the railroad company's engine at a point directly below the space occupied by the engineer in the cab of the engine, about 30 to 32 feet from the north end of the tender, the north end of which at that time was approximately eight feet north of the paved portion of the highway.
The evidence disclosed further that from U.S. route 40 at a point 70 feet west of the railroad tracks there was a clear view of the tracks, upon which the train was approaching, south of the highway for a distance of 1,600 feet; that the state highway department had erected and there was present at the time of the collision a yellow warning sign with black letters thereon, on the south side of the highway, a distance of between 400 and 600 feet west of the crossing; that the highway was marked on the paved portion to warn of the railroad crossing; that a railroad crossarm warning sign was erected and maintained west of the railroad tracks and on the south side of the highway, upon which sign had been painted the words, "railroad" and "crossing," in large letters (but the testimony was in dispute as to the visibility of the lettering on the sign at the time of the collision); and that, prior to the collision and before the train reached the highway crossing, a man stood in the center of the highway waving his hands up and down to stop the traffic from coming upon the tracks.
The evidence did not disclose that Bushey saw the man waving his arms on the highway ahead of her. The evidence is undisputed that she did not see the crossarm warning sign, did not see the highway department's markers and did not see the train until she was four car lengths west of the railroad tracks, after which time, due to the condition of the highway and the speed at which she was driving, she was unable to avoid the collision.
At the end of plaintiff's testimony, the trial court directed a verdict in favor of Bushey and overruled the railroad company's motion for a directed verdict. At the close of all the evidence the court, for the reason that the plaintiff failed to offer any testimony in proof thereof, sustained the motion of the railroad company to withdraw from the consideration of the jury the specifications of negligence relating to failure to sound its bell and failure to guard the highway crossing with signal lights or to maintain a flagman at the crossing.
The trial court submitted for the consideration of the jury the specifications of negligence of the railroad company relating to the alleged failure to maintain a railroad crossbar warning sign so that it was visible to eastbound traffic on the highway, and to the alleged failure to maintain any lookout as the train approached and crossed the highway.
The jury returned a verdict in the sum of $10,000 in favor of the plaintiff and against the railroad company. The jury gave answers to special interrogatories as follows:
"1. Was the defendant The Baltimore Ohio Railroad Company negligent? Answer: Yes.
"2. If your answer to interrogatory No. 1 is `no' you need not answer this interrogatory.
"If your answer to interrogatory No. 1 is `yes' then you must answer this interrogatory. Of what did the negligence of the defendant The Baltimore Ohio Railroad Company consist? Answer: The negligence consisted of failure to maintain the crossbar warning sign in a good state of repair so that the lettering was distinct as required by the law.
"3. Did defendant, The Baltimore Ohio Railroad Company, maintain a railroad crossbar warning sign at the crossing, lettered and visible to eastbound traffic on the highway approaching the crossing? Answer: No.
"4. Did the condition of the railroad crossbar warning signs proximately contribute to cause the injuries or death of Imogean L. Cobb, Jr.? Answer: Yes.
"5. Did the operators of the train of the defendant The Baltimore Ohio Railroad Company maintain a lookout on the tracks ahead of the train? Answer: Yes.
"6. Did the sole negligence of the driver Beulah Marie Bushey proximately cause the injuries and death of the plaintiff Imogean L. Cobb, Jr.? Answer: No.
"7. Did Beulah Marie Bushey see the railroad crossbar warning sign west of the railroad tracks and south of United States route No. 40 at any time prior to the collision? Answer: No."
A motion of the railroad company for a judgment non obstante veredicto was overruled by the trial court, and judgment was rendered on the verdict for the plaintiff. The railroad company's motion for a new trial also was overruled.
On appeal by the railroad company to the Court of Appeals that court affirmed the judgment of the trial court.
The case is now in this court on review by reason of the allowance of a motion to certify the record.
Mr. J. Paul Brenton and Messrs. Pickrel, Schaeffer Ebeling, for appellee.
Messrs. Marshall, Harlan Smith, for appellant.
In the opinion of this court the answer of the jury, to interrogatory No. 5, to the effect that the operators of the train maintained a lookout on the tracks ahead of the train, together with the fact that there was no testimony from which it could be inferred that any failure to look for the approach of an automobile to the railroad crossing was a proximate cause of the collision, disposes of this claim of negligence adversely to the plaintiff.
This leaves for our consideration only the question: Did the failure of the railroad company to maintain a railroad crossarm warning sign at the crossing with lettering inscribed on the crossarms as required by law cause the death of plaintiff's decedent? A failure upon the part of a railroad company to observe the requirements of Section 8852, General Code, relating to the maintenance of such a sign is negligence per se.
This statute provides as follows:
"At all points where its road crosses a public road at a common grade, each company shall erect a sign, with large and distinct letters placed thereon, to give notice of the proximity of the railroad, and warn persons to be on the lookout for the locomotive. A company which neglects or refuses to comply with this provision shall be liable in damages for all injuries which occur to persons or property from such neglect or refusal." (Italics supplied.)
By the terms of the statute itself a violation of the same creates liability only when the failure to comply is shown to be the cause of the injury — in this case the death of the plaintiff's decedent. This was an issue which the plaintiff was required to prove by affirmative evidence. A search of the record fails, in our opinion, to disclose the proof of any facts from which an inference may be drawn that the failure to maintain proper lettering on the crossarms of the railroad sign, as required by law, was the cause of the collision and death of plaintiff's decedent.
The evidence unmistakably showed that two highway signs were maintained by the highway department of the state, a railroad sign with crossarms was maintained by the railroad company, as warnings of the crossing, and a man stood in the center of the highway waving his arms to warn travelers on the highway of the danger of the approaching train. For some unaccountable reason Bushey failed to observe any of these warnings and not until she observed the train crossing the highway ahead of her did she realize that a collision between her automobile and the train might occur. These facts, in our opinion, do not raise any inference that Bushey would have seen lettering on the railroad sign, which sign structure she did not see and which in itself was a universally recognized warning of the presence of railroad tracks on the highway, even if the lettering had been insufficient to comply with the statute.
Not only does the amended petition itself allege that the accident resulting in the death of plaintiff's decedent was caused by the failure of Bushey to maintain a lookout ahead, that she disregarded the warning signs and markers, and that she failed to look or listen before attempting to cross the railroad crossing, but Bushey, upon cross-examination, testified that she saw a sign with the name of the village of Bachman upon it on the side of the highway, and then she continued her testimony as follows:
"Q. Did you see any other signs along there — along the road? A. No, I didn't.
"Q. No signs of any kind? A. No.
"*
"Q. As you were going through this community, where were you when you first realized there was a north bound train coming across the highway? A. I would say I was about four car lengths back when I saw it coming across.
"Q. About four car lengths from the place where it was coming off the highway? A. It was very confusing. It came out from nowhere to my estimation."
In the opinion of the court, if any inference is to be drawn from the testimony of Bushey that she did not even see the crossarm warning sign, as above stated, it is that the failure to properly letter the sign, if there was such a failure, had nothing to do with causing the death of Imogean L. Cobb, Jr., and was not a proximate cause of her death.
If Bushey had seen the signs themselves as they existed at the crossing, an inference would probably arise that she would likewise have seen the letters on the sign if they had been plainly visible, but since her testimony was to the effect that she saw none of the signs of warning present at the crossing, an inference must arise that she was not looking as she neared the crossing, in which event the condition of the railroad sign would not have any bearing upon the question of proximate cause of the collision, or the liability of the railroad company. Since the object of a warning sign at a railroad crossing is to warn travelers of the existence of the railroad crossing, the absence of such sign does not make the railroad company whose duty it is to maintain the sign liable to one who due to inattention strikes a train on the crossing. Gallagher v. Montpelier Wells River Rd. Co., 100 Vt. 299, 137 A. 207, 52 A.L.R., 744; Morier v. Hines, Dir. Genl., 81 N.H. 48, 122 A. 330. Of course, the negligence of Bushey was not imputable to plaintiff's decedent, but if the negligence of the former was the sole proximate cause of the collision and death of such decedent, the plaintiff cannot recover from the railroad company.
In the brief of counsel for plaintiff it is stated:
"Defendant contends that the jury's finding as to proximate cause is based on an inference that the automobile driver would have seen the sign had it been lettered. On the contrary it is plaintiff's contention that the jury found that had the sign been properly maintained according to law that the automobile driver might have seen it or could have seen it in time to properly exercise vigilance in ascertaining whether defendant was about to pre-empt the crossing in question." (Italics supplied.)
The evidence must have tended to prove, not that the automobile driver "might have seen" the sign or "could have seen it" if properly lettered, but that the driver would have seen or probably would have seen the sign if it had been properly lettered. There was no such evidence.
The question of proximate cause of an injury or death is ordinarily one of fact for the jury, but the burden of proof is on the plaintiff, and if there is no evidence to support the affirmative of that issue it becomes one of law for the court. Lake Shore M.S. Ry. Co. v. Liidtke, an Infant, 69 Ohio St. 384, 69 N.E. 653; Buell, Admx., v. New York Central Rd. Co., 114 Ohio St. 40, 150 N.E. 422; Detroit, Toledo Ironton Rd. Co. v. Rohrs, 114 Ohio St. 493, 151 N.E. 714; Penna. Rd. Co. v. Rusynik, 117 Ohio St. 530, 159 N.E. 826, 56 A.L.R., 538; Penna. Rd. Co. v. Moses, 125 Ohio St. 621, 184 N.E. 8; New York Central Rd. Co. v. Stevens, Admr., 126 Ohio St. 395, 185 N.E. 542; Gumley, Admr., v. Cowman, 129 Ohio St. 36, 193 N.E. 627; Penna. Rd. Co. v. Townsend, 130 Ohio St. 554, 200 N.E. 772; Patton, Admx. v. Penn. Rd. Co., 136 Ohio St. 159, 24 N.E.2d 597.
Under the state of the record the trial court should have sustained the motion of the defendant railroad company to direct a verdict in its favor. The court having failed to sustain such motion, the jury found a verdict in favor of the plaintiff and it was then the duty of the court to sustain a motion of the railroad company to render judgment in its favor notwithstanding the verdict.
The judgment of the Court of Appeals is reversed and final judgment is rendered for the defendant The Baltimore Ohio Railroad Company.
Judgment reversed.
MATTHIAS, STEWART, TURNER and TAFT, JJ., concur.
WEYGANDT, C.J., and ZIMMERMAN, J., dissent.