Opinion
No. 24089
Decided November 15, 1933.
Error proceedings — Reversal for error in not directing verdict — Reviewing court to enter judgment, and not remand cause — Negligence — Railroad to maintain passenger shelter house reasonably safe against storms — Duty inures to benefit of passengers in lee of shelter house, when.
1. When the Court of Appeals reverses a judgment of the trial court, for the assigned reason that the trial court erred in not sustaining the motion of a defendant for a directed verdict, made at the close of all the evidence, it becomes the duty of the appellate court to render the judgment which the trial court should have rendered, and not to remand the cause to the trial court for further proceedings.
2. Where a railroad company has constructed a shelter house, for the benefit of its prospective passengers, it becomes its duty to exercise ordinary care in maintaining it in a reasonably safe condition against storms that could have been reasonably anticipated. And that duty inures to the benefit of such passengers when seeking protection against rain and storm, in the lee of such shelter house instead of its front where lesser protection is afforded.
ERROR to the Court of Appeals of Cuyahoga county.
John Majoros, the plaintiff below, a boy about twelve years of age, and a companion were returning home from the Highland Park golf course where they had been engaged as caddies. They obtained a ride part of the way from a passing motorist, who set them down at a shelter house on the premises of the defendant railroad company, located at the corner of Coventry road and Shaker boulevard in the village of Shaker Heights. Plaintiff testified that at this point, which was a car stop, he intended to board an interurban car proceeding westerly towards his home about a mile distant. The shelter, constructed by the railroad company, was a small one, and was maintained for the convenience of passengers expecting to board its cars. It was about eight or nine feet high, facing the south, and rested upon woodon sills set in the ground, these sills being anchored by two by fours driven into the ground, to which the sills were bolted. It was covered with a roof, was open in front, entirely boarded in the rear, and partially inclosed on the sides, the open part of the shelter house facing the south and the track of the rail road company. Soon after plaintiff reached the shelter house, a violent wind-storm driving from the south, accompanied by rain, caused him and his companion to seek protection at the back of the shelter house, and while there waiting gusts of the windstorm lifted the shelter house from its anchorage, causing it to topple upon and injure the plaintiff.
In the amended petition the gravamen of the action is based on the negligence of the defendant in not securely anchoring the shelter house; in failing to inspect the shelter house to ascertain whether its foundation was firm; in failing to reinforce it when defendant railroad knew, or should have known, that it was not securely anchored against disturbance by gusts of wind; and in failing to provide and maintain a shelter house that was firmly, safely and securely constructed.
The answer of the defendant was in substance a general denial. The record discloses, however, that the actual defenses of the company rested upon denials that the plaintiff was a potential passenger, and that the shelter house was overturned because of negligent construction. The defendant also endeavored to establish the fact that the accident was caused by a storm of such violent and unusual character and magnitude that ordinary prudence could not have guarded against it. It also claimed that the disabilities of the plaintiff, testified to on the trial, were not due to the injuries he had received from the fall of the shelter house. At the close of all the evidence the defendant moved for a directed verdict in its favor, which motion the trial court overruled.
The plaintiff recovered a verdict and judgment. That judgment was reversed by the Court of Appeals for the sole reason assigned in its journal entry, viz., that the trial court erred in overruling the motion of the defendant below, made at the close of all the evidence, for a directed verdict in its favor. Having reversed the trial court for such error, the Court of Appeals then remanded the case to the common pleas court for further proceedings. The cause is here for review; a motion to certify being allowed.
Mr. M.C. Harrison, for plaintiff in error.
Messrs. Boyd, Brooks Wickham, for defendant in error.
When the Court of Appeals reversed the trial court for failure to direct a verdict in favor of the defendant below, as indicated in its journal entry, it became the duty of the reviewing court to render the judgment that the trial court should have rendered. It should have rendered final judgment instead of remanding the cause to the trial court for further proceedings. Such procedure is authorized by Section 12272, General Code, and is the procedure usually followed by the reviewing courts, including our own. A case exactly similar to this is Metzger Seed Oil Co. v. Berg, 84 Ohio St. 485, 95 N.E. 1152. Such judgment of the Court of Appeals is of course reviewable by the Supreme Court. Jacob Laub Baking Co. v. Middleton, 118 Ohio St. 106, 160 N.E. 629. It is not entirely clear why the appellate court held that a verdict should have been rendered for the defendant below in the trial court, but its judgment could not have been based upon controversial issues which were in serious dispute. We are all of opinion that the facts testified to by plaintiff's witnesses at the trial, reflecting upon the issues whether the shelter house was securely anchored against violent storms, whether on this occasion the storm was of such unusual magnitude as to constitute a vis major, such as could not have been reasonably anticipated, and whether the injuries sustained resulted from the toppling of the shelter house, were in dispute; the evidence pertaining thereto being such that different minds could reasonably arrive at different conclusions therefrom. Jacob Laub Baking Co. v. Middleton, supra. It is therefore apparent that the reversal by the appellate court must have been based upon a question of law applied to, and arising from, conceded or proven facts. The crucial point in this controversy is whether the boy, occupying the shelter house premises as a potential passenger intending to board a car of the defendant, can claim that there was a duty owing him by the railroad company to provide a reasonably safe shelter house, although at the time the elements had driven him into the rear thereof for self-protection against the storm and rain. Upon that phase counsel for the defendant asked that the following instruction be given the jury before argument: "If you find that plaintiff left the house provided for shelter by the defendant and went beyond and outside of it to avoid the rain, he therefore ceased to be a passenger and is not entitled to your verdict." The court refused to give it, but gave the following instruction in its general charge: "If he [plaintiff] went into the shed for the purpose of being carried to his home or towards his home, of becoming a passenger, then during the time that he was in the station and while he was waiting for the car he was in fact and in law a passenger."
The basis of the claim made by counsel for the defendant below seems to be that, if the boy were intending to board the car as a prospective passenger, when he left the front of the shelter house, and went behind it, he thereby abandoned his status as such, and the company owed him no duty to protect him. We think that claim is untenable. The structure was built and maintained for the purpose of shelter for the company's patrons. On this occasion its lee appeared to afford a much better shelter than did its open front. Whether the plaintiff suffered injury while seeking protection from the storm, or had been injured in its immediate vicinity while approaching the shelter house for the purpose of becoming a passenger, in either event the obligation would be similar, and a duty would be owing to him by the defendant company to exercise ordinary care in the construction and maintenance of the shelter house; upon that feature the court did not charge that the defendant was required to use the highest degree of care, but that it was required to exercise reasonable care in the maintenance of the structure in a reasonably safe condition.
We do not find, nor did the Court of Appeals find, that there was any error in the charge of the court. One of the principal errors urged here is that the trial court erred in giving special instruction No. 3, requested by the plaintiff, relating to the question whether the storm was such as to constitute a vis major. We find no error in that instruction, since it embodied substantially the instruction given by the trial court, and approved by this court, in the case of City of Piqua v. Morris, 98 Ohio St. 42, 47, 120 N.E. 300, 7 A.L.R., 129. Since there was substantial evidence offered by the plaintiff tending to show negligence on the part of the company in failing to use proper care in constructing and maintaining the shelter house, we are of opinion that the duty so to do inured to the benefit of the plaintiff as a prospective passenger, although he sought the lee of the structure for protection, and that the trial court did not err in refusing to sustain the motion of the defendant for a directed verdict in its favor. In holding that the trial court should have sustained that motion, the Court of Appeals erred.
For the reason stated, we therefore reverse the judgment of the Court of Appeals and affirm the judgment of the trial court.
Judgment reversed.
WEYGANDT, C.J., ALLEN, STEPHENSON, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur.