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RAILROAD REPORTS

DROWN V. NORTHERN OHIO TRACTION CO.

(Supreme Court of Ohio, May 7, 1907.)

[81 N. E. Rep. 326.]

Negligence Contributory Negligence.*-Where both the plaintiff and the defendant were negligent, and the negligence of both directly contributed to produce the injury, the plaintiff has no right to recover; and in such case, when the defendant asks the court to so instruct the jury, in unambiguous terms, a refusal to so instruct is error. Pittsburg, Ft. W. & C. Ry. Co. v. Krichbaum's Adm'r, 24 Ohio St. 119, and Timmons v. Central Ohio Railroad Co., 6 Ohio St. 105, approved and followed.

Same Last Chance.t-The doctrine of "last chance," as formulated in Railroad Co. v. Kassen, 31 N. E. 282, 49 Ohio St. 230, paragraph 1 of syllabus, does not apply where the plaintiff has been negligent, and his negligence continues, and, concurrently with the negligence of defendant, directly contributes to produce the injury; it applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence by the plaintiff so that the negligence of defendant is clearly the proximate cause of the injury, and that of the plaintiff the remote cause.

Same Pleading. Since the plaintiff can recover only upon the allegations of his petition, he cannot recover upon negligence which warrants the application of the rule of "last chance," without alleging it in his petition.

(Syllabus by the Court.)

Error to Circuit Court, Summit County.

Action by one Drown against the Northern Ohio Traction Company. Judgment of the court of common pleas for plaintiff

*For the authorities in this series on the question whether there may be a recovery on account of simple negligence where there was also contributory negligence, see foot-notes appended to Louisville & N. R. Co. v. Sights (Ky.), 21 R. R. R. 856, 44 Am, & Eng. R. Cas., N. S., 856; foot-notes appended to Schmidt v. Missouri Pac. Ry. Co. (Mo.), 21 R. R. R. 806, 44 Am. & Eng. R. Cas., N. S., 806; foot-notes appended to Cole v. Blue Ridge Ry. Co. (S. Car.), 21 R. R. R. 606, 44 Am. & Eng. R. Cas., N. S., 606.

For the authorities in this series on the subject of the last clear chance doctrine, see foot-notes appended to Hanson v. Manchester St. Ry. (N. H.), 22 R. R. R. 675, 45 Am. & Eng. R. Cas., N. S., 675; Reid v. Atlanta, etc., Ry. Co. (N. Car.), 22 R. R. R. 670, 45 Am. & Eng. R. Cas., N. S., 670; foot-notes appended to Chesapeake & O. Ry. Co. v. Farrow's Adm'x (Va.), 22 R. R. R. 360, 45 Am. & Eng. R. Cas., N. S., 360; foot-notes appended to Illinois Cent. R. Co. v. Ackerman (C. C. A.), 21 R. R. R. 76, 44 Am. & Eng. R. Cas., N. S., 76.

Drown v. Northern Ohio Trac. Co

was reversed by the circuit court, and plaintiff brings error. Affirmed.

This case came into the court of common pleas of Summit county by appeal from a justice of the peace. It was an action to recover damages for an injury, by an electric car belonging to the defendant, to a buggy and a pair of horses hitched thereto. The petition alleged no other specific act of negligence by the defendant than that the car of the defendant was running at a high and dangerous rate of speed, without sounding a signal, and without warning of any kind, in violation of an ordinance of the city of Akron, and without keeping any lookout for persons driving on the street. The defendant denied all the allegations of negligence, and, futher answering, alleged that if the property of plaintiff was injured or damaged in any way it was the direct result of the carelessness and negligence of the plaintiff and of the person driving the team of horses owned by the plaintiff; that the person driving said team carelessly and negligently drove upon the track of the defendant in front of an approaching car, without looking for an approaching car, or taking any precaution for his safety or the safety of the team; that the approach of the car could have been seen and heard by the person driving the team, had he used ordinary care or looked for an approaching car; that the person driving the team drove upon the tracks of the defendant in front of an approaching car, which was so close to the team at the time it was driven upon said track tha. it was impossible to stop the car. And the defendant also further avers that any injury or damages sustained by the plaintiff was the result of the negligence of the plaintiff and the person driving the team directly contributing thereto. The reply denied each and every allegation contained in the answer, except so far as they are admissions of the plaintiff's petition. The circumstances of the case, as developed in the evidence, are as follows: A span of horses, harnessed to a top buggy belonging to the plaintiff in error and driven by one Hardy, was going south on Main street, in the city of Akron, having come onto Main street from Coburn street. There was a loaded wagon standing on the west side of Main street, with a span of horses attached to it, hitched to a post. The point at which the plaintiff in error's team came upon Main street was about 200 or 250 feet north from the point where the accident occurred. When the driver reached Main street, he looked to the north for an approaching car, but saw none. He did not look back of him after he started southward upon Main street. There was a double track on Main street. The team was driven at the rate of seven or eight miles an hour south upon the street and, seeing a wagon extending to within a few feet of the street car track on the west side of the street, Hardy drove astride of the west rail of the west track, in order to avoid it. A short distance beyond the wagon, which was hitched in the street, the buggy and horses were struck by the car. The driver, Hardy, testifies that the accident occurred as he was leaving the track upon which he had driven to go around the wagon. The motorman and one other wit

Drown v. Northern Ohio Trac. Co

ness called by the plaintiff testify that the accident occurred as the team was driven upon the west track. The motorman and two other employees of the defendant company testify that, on the trial before the justice of the peace, Hardy testified that the accident occurred as he drove upon the track to pass around the team which was hitched in the street. Hardy denies this.

The court was asked to instruct the jury in several propositions, only two of which it is necessary to quote. They are as follows: "(3) If the jury find from the evidence that the plaintiff, through his agent, Hardy, and the defendant were both negligent, and that the negligence of both directly contributed to cause the injury complained of in plaintiff's petition, then your verdict should be for the defendant. (4) If the jury find that the negligence of both plaintiff's agent and the defendant combined so as to directly cause the injury complained of by plaintiff, then your verdict should be for the defendant." These requests to charge were refused by the court, but the court did charge the jury as follows: "I say to you, gentlemen of the jury, that if you find from all the evidence that the motorman, who had charge of the car which struck Hardy's team, could by the exercise of ordinary care have seen the plaintiff and stopped the car, and that by reason of the failure to stop the car Hardy's team was knocked down and injured, it would be such negligence on the part of the defendant as would enable the plaintiff to recover, provided Hardy was free from contributory negligence on his part; or if the motorman saw Hardy's team on the track, or by the exercise of ordinary care could have seen it in time to stop the car, but did not, and purposely, willfully, and wantonly ran into it, then defendant. would be guilty of negligence, and the plaintiff would be entitled to recover under such circumstances, even if plaintiff's agent was guilty of contributory negligence in being on the track in front of the car at the time of the injury. *** The court instructs the jury that one who is injured by the mere negligence of another cannot recover any compensation for his injury, if, by his own negligence, he contributed to produce the injury of which he complains, so that but for his, or his agent's, concurring or co-operating fault, the injury would not have happened to him, except when the direct cause of the injury is the omission of the other party, after becoming aware of the injured party's or his agent's negligence, or by the exercise of ordinary care could have become aware of such negligence, failed to use a proper degree of care to avoid the consequences of such negligence. The court instructs the jury that notwithstanding the jury may find that the plaintiff or his agent was guilty of negligence, and that such negligence contributed to the injury of which he complains, yet still if the agents of the defendant were aware of such negligence in time, by the use of ordinary care and prudence, to have avoided the effect of such negligence on Hardy's part, but did not do so, then such negligence on his part is not such contributory negligence as to constitute a defense to this action. What I mean by that, gentlemen, so as to make no mistake, is that if Hardy was

Drown v. Northern Ohio Trac. Co

on this track driving south, and you find that he was negligent in being on it as he was, his failure to look, or failure to watch, to avoid injury, if he was negligent, that that would not prevent him from recovering in this suit, if the motorman of the car, after discovering him in that position, could have, by the use of reasonable and ordinary care on his part, avoided the injury by stopping the car. Now, gentlemen, that is a question of fact for you to determine from all the facts and circumstances in the case, and I leave that question wholly for you to determine impartially and justly, according to the testimony."

The defendant excepted to the charge generally, and to each and every part thereof, and to the refusal to charge as requested. The jury returned a verdict in favor of the plaintiff, motion for new trial was overruied, and judgment rendered upon the verdict. On petition in error, the circuit court reversed the judgment of the court of common pleas and remanded the cause to the said court to be proceeded in according to law and the rights of the parties. The plaintiff in error seeks to have the judgment of the circuit court reversed, and the judgment of the court of common pleas affirmed.

G. M. Anderson and A. J. Wilhelm, for plaintiff in error.
Rogers, Rowley & Rockwell, for defendant in error.

DAVIS, J. (after stating the facts). Under the issues in this case evidence was introduced tending to prove that the plaintiff's agent was guilty of negligence directly contributing to the injury to plaintiff's property. If the driver of the plaintiff's team, immediately upon entering Main street, and without afterwards looking to the north, as he admits, drove southward upon the track until the car coming from the north overtook and collided with the buggy, he was negligent, because the street was open and unobstructed for from 200 to 250 feet from the point at which he entered upon it, and it was not necessary for him to go upon the street railway track, and because, the night being dark he unnecessarily put himself in an obvious place of danger, and continued therein until the moment of the accident, without looking out for an approaching car or doing anything whatever to avoid injury, apparently risking his life and the property of his principal upon the presumption that the defendant's employees would make no mistakes nor be guilty of any negligence. If, on the other hand, he drove along the street until he came to the obstruction, and then turned out upon the track to go around it, without again looking, as his own testimony shows that he did not, and was then almost in the same instant struck by the car, he was negligent. Upon either hypothesis, assuming that the defendant was negligent in not keeping a proper lookout, or was otherwise not exercising ordinary care to prevent collision with persons lawfully on its track, the plaintiff could not recover, if it should appear in the case that the negligence of both is contemporaneous and continuing until after the moment of the accident, because in such case the negligence of each is a direct cause of the

Drown v. Northern Ohio Trac. Co

injury, without which it would not have occurred, rendering it impracticable in all such instances, if not impossible, to apportion the responsibility and the damages. Suppose, for example, that not only the buggy and horses had been injured, but the defendant's car also, by what standard could the extent of liability of either party be determined? Timmons v. Central Ohio Railroad Co., 6 Ohio St. 105; Village of Conneaut v. Neaf, 54 Ohio St. 529, 531, 44 N. E. 236. In short, there can be no recovery in such a case unless the whole doctrine of contributory negligence, a doctrine founded in reason and justice, should be abolished.

Under these circumstances, therefore, it was not sufficient to say to the jury that if they should find that the motorman who had charge of the car which struck the team could by the exercise of ordinary care have seen the team, and could have stopped the car, and that by reason of the failure to do so the team was injured, it would be such negligence by the defendant as would entitle the plaintiff to recover, provided, that the plaintiff's driver was "free from contributory negligence." The defendant had the right to have the jury specifically instructed, as it requested, that if the jury should find from the evidence that both the plaintiff and the defendant, through their agents, were negligent, and that the negligence of both combined so as to directly cause the injury complained of, then the verdict should be for the defendant. The court refused to so instruct the jury, and the circuit court correctly held that the refusal to so charge was erroneous.

The error in refusing the defendant's request to charge was extended and made much more prejudicial when the court, after giving instructions as to contributory negligence by the plaintiff in very general terms, proceeded to impress upon the jury, by repetition and with some emphasis, the doctrine know as "the last chance." This doctrine is logically irreconcilable with the doctrine of contributory negligence, and accordingly it has been vigorously criticised and warmly defended. Probably, as in many such controversies, the truth lies in middle ground; but it is certain that it is only applicable in exceptional cases and the prevalent habit of incorporating it in almost every charge to the jury in negligence cases in connection with and often as a part of, instructions upon the subject of contributory negligence is misleading and dangerous. This confusion seems to arise either from misapprehension of the law or a want of definite thinking. The doctrine of the "last chance" has been clearly defined by a wellknown text-writer as follows: "Although a person comes upon the track negligently yet if the servants of the railway company, after they see his danger, can avoid injuring him, they are bound to do so. And, according to the better view with reference to injuries to travelers at highway crossings-as distinguished from injuries to trespassers and bare licensees upon railway tracks. at places where they have no legal right to be-the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings; and the railway company

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