Pennsylvania Co. v. Rathgeb.

will prevent a recovery. Gorten v. Erie R. R. Co., 45 N. Y. 660; Ernst v. H. R. R. Co., 35 N. Y. 9, and 39 N. Y. 61; Beisiegel v. N. Y. C. R. R., 34 N. Y. 625; Havens v. Erie R. R., 41 N. Y. 296; Wilcox v. Rome & W. R. R., 39 N. Y. 358; Artz v. C. R. I. & P. R. R., 34 Iowa, 153; Stevens v. Railroad, 18 N. Y. 422; Reynolds v. Hinchman, 32 Iowa, 146; G. & W. R. R. v. Loomis, 13 Ill. 548; Davis v. Railroad, 47 N. Y. 400; Mitchell Ackler v. N. Y. C. & H. R. R., 64 N. Y. 655; 58 N. Y. 248.

Counsel for the railroad company asked the court to charge the jury as follows:

1. "If the plaintiff as he passed Bently's house and approached near to the iron track, did not look eastward along the railroad to discover if a train was approaching, and drove his horse upon the track without so looking eastward, that would be evidence of negligence upon his part, and sufficient to justify the jury in rendering a verdict against him." The court gave the charge, all but the concluding sentence" and sufficient to justify the jury in rendering a verdict against him."

The evidence is clear, that Rathgeb might have seen the train at any point less than 300 feet from the crossing, until he reached it, and seen it in time to have avoided a collision. Although he says he was near-sighted, still he stated that he could have seen a train for a distance of fifty rods, and his defect of vision was not such as to vary the principle.

Being able to see, therefore, and the opportunity of seeing being presented, his failure to discover or to be aware of the approaching cars, we think, was not only evidence of negligence, but negligence itself, and sufficient to justify a verdict against him. And in other parts of the charge, the court declined to say that the positive duty of the plaintiff was to look up along the track, but left it to the jury to determine whether it was incumbent upon him to do so or not. We think such directions do not meet the requirements of the case. The rule should be laid down in such clear terms that there can

Pennsylvania Co. v. Rathgeb.

be no mistake in its application. This case is really disposed of by that of Railroad v. Elliott, 28 Ohio St. 340. In the Cleveland C. & C. R. R. v. Crawford, 24 Ohio St. 631, the first clause of the syllabus is, "Ordinary prudence re-. quires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so, without a reasonable excuse, therefore, is negligence, and will defeat an action by such person for an injury to which such negligence contributed."

In this case the court say that as a general rule the question of contributory negligence is a mixed question of law and fact, and proceed to observe, "Where, however, all the material facts in the case are undisputed, or are found by the jury, and admit of no rational inference but that of negligence, or that of due care, it is, no doubt, the duty of the court to say to the jury that, as matter of law, the facts so appearing amount to negligence, or due care, as the case may be; as it would be the duty of the court to determine, as a question of law, what judgment should be rendered on a special verdict." This case carefully distinguishes between those cases where omission to use the senses is negligence and where it is not. If the using the eyes and ears could not have prevented the collision, an omission to use them is not contributory negligeuce. If the circumstances were such as would have excused a person of ordinary prudence from looking and listening, then there is no negligence.

The proposition is further illustrated by the case of the Bellefontaine Railroad Co. v. Snyder, 24 Ohio St. 670, the syllabus of which is, "It is the duty of a person approaching, crossing, or standing upon a railroad track, where cars are being run, to look out for approaching cars, and if he fails to do so, he is prima facie guilty of such negligence as will prevent his recovery for injuries occasioned to him, while so crossing or standing upon the track, by the mere

Pennsylvania Co. v. Rathgeb.

carelessness, negligence, or unskillfulness of the company, not amounting to willfulness on their part; and this presumption of negligence can only be rebutted by facts or circumstances showing that it was not reasonably practicable to make or keep such lookout, or such as would ordinarily induce persons of common prudence to omit that precaution."

In the case before us, the evidence is clear that Rathgeb might have seen the train, by simply using his eyes, in time to have prevented the collision. There were none of the circumstances referred to in the Crawford and Snyder cases, which absolved him from the duty of exercising his vision. There was no reason why he should not have looked, and had he done so he would not have been hurt.

A case of contributory negligence was decided by the Supreme Court of the United States, October term, 1877. The Balt. & Pot. R. R. v. Jones, Weekly Cin. L. Bulletin, Jan. 7, 1878. Jones was a laborer in the employ of the company. The men were in the habit of riding to and fro from their work. A locomotive and box car was used for this purpose, but the men, or some of them, often jumped on the pilot and rode there. Jones had been cautioned against this and forbidden to do so, but upon the day when he was hurt, he disobeyed the injunction and jumped on the pilot. By a collision he was hurt. The court was asked to charge as follows: "If the jury find from the evidence that the plaintiff knew the box car was the proper place for him, and if he knew his position on the pilot of the engine was a dangerous one, then they will render a verdict for the defendant, whether they find that its agents allowed the plaintiff to ride on the pilot or not." This charge was refused. Mr. Justice Swayne says: "The plaintiff was not entitled to recover. It follows that the court erred in refusing the instruction asked on this subject. If the company had prayed the court to direct the jury to return a verdict for the defendant, it would have been the duty of the court to give such directions, and error to refuse."

In the case before us the negligence of plaintiff was such

Collins v. Davis.

that the jury should have been told that it barred his right

of recovery.

Judgment reversed.

COLLINS v. DAVIS.

ERROR to the District Court of Belmont county.

On suggestion of diminution of record, and motion for an order to send up a perfect transcript.

John W. Okey, for the motion.

J. H. Collins, contra.

BY THE COURT. The original action was brought by Collins against Davis, to recover a money judgment.

Upon trial in the court of common pleas, judgment was rendered for plaintiff, which was subsequently reversed by the district court, on application of the defendant, and, in May, 1875, a petition in error was allowed to be filed in the supreme court, by the plaintiff, to reverse the judgment of reversal.

The defendant now moves this court for an order to the clerk of the court of common pleas, directing him to send up a full transcript of the record in the case, and, in support of this motion, represents that since said judgment of reversal, and before the case came into this court upon error, the case was remanded to the common pleas for further proceedings, where the parties voluntarily appeared, and the case was again tried, without objection or a suggestion by the plaintiff that he intended to prosecute error in this court to reverse this judgment of reversal; which second trial resulted in a verdict for defendant. Held, that these proceedings in the court of common pleas, subsequent to the final judgment of reversal in the district court, form no part of the record of such final judgment, and can not be brought here upon suggestion of diminution of record

Insurance Co. v. Tobin.

and motion. They should be taken advantage of by answer, upon which an issue of law or fact may be joined. Motion overruled.

THE WESTERN INSURANCE COMPANY OF CINCINNATI v. TOBIN AND ANOTHER.

1. When a series of propositions, requested as a charge to the jury, are given, and there are one or more sound propositions of law in the series, an exception to the series, in this form—"to the giving of which charge defendant at the time excepted"-is insufficient. The exception should be to each proposition, or, if not intended to except to each, should, in some pertinent way, distinctly refer to the proposition claimed to be erroneous.

2. Where a series of propositions are requested as a charge, and one or more of the propositions are unsound, and the charge is refused or modified in several respects, an exception as follows-to which refusal and modifications of such charges defendant at the time excepted "—is not sufficiently definite. In such case, the exception falls, because it fails to direct the attention of the reviewing court to the proposition or propositions in regard to which error is claimed to exist.

3. An exception in the following form-" to which general charge of the court, the defendant at the time excepted, and excepted also to each proposition of law therein contained, differing from the several specific charges asked by defendant "--when the general charge contains more than one proposition of law, and is not in all respects erroneous, is wanting in definiteness, and fails to present any question with sufficient certainty for review on error.

4. An exception to a general charge, or one containing more than a single proposition of law, should clearly point out the part of the charge intended to be questioned by the exception, at the time the charge is given or refused, and, failing in this respect, the reviewing court will not be bound to take notice of the exception.

5. In an action by the owners of a steamboat against an insurance company, on a policy against perils in the navigation of specified privileged waters, for the loss of the vessel, occasioned by encountering an unknown cause of peril, from which she suddenly sprung a leak and sunk, while navigating a privileged water, it is not competent, in chief, to give in evidence, for any purpose, specific cases of other steamboats that have been lost, while navigating the same and other western rivers, occasioned by some unknown injury causing them to suddenly leak and sink.