On this appeal on questions of law from a judgment entered upon a verdict of the jury directed by the court at the conclusion of the evidence, the circumstances surrounding the collision between defendant's train and the automobile driven by plaintiff's decedent are set forth in the dissenting opinion and are only supplemented herein.
With regard to the view of a driver of an automobile approaching the crossing, defendant's exhibit C, a photograph taken the day after the accident, discloses an unobstructed view *Page 6 to the east from a point 15 feet north of the north rail of the westbound track for a distance beyond a signal tower located 900 feet to the east. In taking the photograph, the camera was held 4 to 5 feet above the roadway. The photograph shows a utility pole located 36 feet north of the northerly rail and a row of telegraph poles running 26 feet north of the northerly rail to the signal tower. The photograph also shows weeds and brush growing in the ditch alongside the track, which one of plaintiff's witnesses testified were hip-high.
The signal tower was located 15 1/2 feet north of the north rail erected upon stilts, with the floor of the tower 15 feet above the ground, so that the engineer of the train, whose eyes would be 9 feet above the rails when the train was 1,000 feet from the crossing, observed decedent's automobile as it approached the crossing when its front end passed the utility pole 36 feet north of the north rail.
Upon cross-examination, one of plaintiff's witnesses, the engineer who prepared the lay-out, guessed that when standing upon the road approaching the tracks at a point 15 feet north of the tracks he could see east a distance of half a mile. With respect to the weeds, another witness for plaintiff testified there were some weeds along the track but none tall enough to obstruct the view. A highway patrolman called by the plaintiff testified that, until he drove his automobile to a point where the front of the vehicle would be five to seven feet away from the north rail, there were some obstructions to his view. But he did not specify the nature of such obstructions, other than to state that the weeds were down in the ditch and were hip-high and lower than certain signal-control boxes, which were four or five feet high. Upon cross-examination, when shown defendant's exhibit C, the witness said:
"Q. That morning when you stopped, according to your estimate, thirteen to fifteen feet north of the north rail and looked to the east was there any obstruction to your view toward the east along the west-bound track? A. I looked to see if I could see a train coming at that point; I could see a train from the tower; from the tower I could have seen a train.
"Q. Was there any obstruction between there and along the track? A. To some degree, from weeds and poles, but from the position I was in I could see back to the tower. *Page 7
"Q. You had a clear view? A. To the tower.
"Q. Beyond those obstructions? A. Yes."
The engineer testified as follows:
"Q. All right now, what did he do with the operation of this car from that point on? A. From the time I first saw him, when he came into West Maple, he continued until he got approximately on this number one track on the westbound track and stopped right in the middle of it.
"Q. Now, when he stopped right in the middle of the westbound track, by that you mean his front wheels were over the south rail and the rear wheels were over the north rail? A. Yes.
"Q. When he stopped there where were you located with reference to the crossing? A. Just about at the tower." (900 feet east of the crossing.)
The fireman also observed the auto coming up to the track from Railroad Street. He testified as follows:
"Q. Then what happened when he got on the crossing with reference to his vehicle? A. It just stopped. It didn't jerk. If it had jerked or something I would have figured the car stalled maybe when he was shifting gears, but it didn't jerk; it just came to a smooth stop and the back wheels of the car were on, approximately on the northern rails and the front wheels were on the southern rails of our track.
"Q. Now, that was when you were about at the tower, is it not? A. Approximately, yes."
There was some testimony that the approach as well as the crossing was rough, but no evidence of ruts or other conditions to support an inference that the crossing itself was hazardous. Under the rule announced in Hood, a Minor, v. New York, Chicago St. Louis Rd. Co., 166 Ohio St. 529, 144 N.E.2d 104, there was sufficient evidence to present a question for the jury on the issue of failure to sound the whistle. In the light of the fact that the collision occurred in the vicinity of the village, a question for the jury may also have been presented with regard to the speed of the train.
But since decedent drove upon the crossing in the face of the approaching train, a majority of this court has the opinion that reasonable minds could not differ that his death was proximately caused by his undertaking to cross ahead of the train. It is *Page 8 firmly established that the driver of a motor vehicle, about to pass over a railroad grade crossing on a public street, must exercise his senses of sight and hearing to discover whether trains are also about to pass over such crossing, and such exercise of the senses must be made at such time and place as to be effective for that purpose. Detroit, Toledo Ironton Rd.Co. v. Rohrs, 114 Ohio St. 493, 151 N.E. 714; Patton v.Pennsylvania Rd. Co., 136 Ohio St. 159, 24 N.E.2d 597;Woodworth, Admx., v. New York Central Rd. Co., 149 Ohio St. 543, 80 N.E.2d 142; Boles v. Baltimore Ohio Rd. Co.,168 Ohio St. 551, 156 N.E.2d 735; Ballmer, Admx., v.Pennsylvania Rd. Co., 59 Ohio App. 221, 17 N.E.2d 435;Lang, Admx., v. Pennsylvania Rd. Co., 59 Ohio App. 345,18 N.E.2d 271; Continental Baking Co. v. Pennsylvania Rd. Co.,87 Ohio App. 505, 96 N.E.2d 258.
Plaintiff's decedent was clothed with the presumption of due care. But the plaintiff is aided by the presumption of due care, in the absence of evidence to the contrary, which presumption furnishes a substitute for actual evidence that the decedent exercised his sense of sight and looked for the approaching train. Woodworth v. New York Central Rd. Co., supra, page 549, citing Maddex v. Columber, 114 Ohio St. 178, 186,151 N.E. 56; Martin, Jr., v. Heintz, 26 Ohio St. 227, 230,184 N.E. 852; Troop A Riding Academy v. Miller, 127 Ohio St. 545, 549,189 N.E. 647. Or, as held by this court in Ballmer v.Pennsylvania Rd. Co., supra, in the syllabus:
"1. The presumption of due care with which the law invests a person killed in an accident means no more than that if he were present at the trial and could testify he would say he did the things ordinary care required him to do.
"2. Such presumption of due care may be negatived as a matter of law if the oral testimony and the undisputed physical conditions shown to have existed at the time and place were such that reasonable minds could reach no other conclusion than that the decedent did not exercise ordinary care."
But, it is urged that, inasmuch as the train was over a thousand feet away when decedent reached the crossing, within the nine-second period before the train would reach the crossing had decedent's vehicle not stopped, he would have had ample time *Page 9 to have made the crossing in safety. This suggestion is somewhat akin to that made in the Woodworth case that lights surrounding the area confused decedent's vision to such an extent that even with the exercise of due care he was unable to observe the oncoming train in time to avoid the collision. The Supreme Court held that there arose no such presumption and that, in order to establish the claim for wrongful death because of such lights, there must have been proof, other than the mere circumstance of the presence of such lights, that they had rendered the motorist unable to distinguish the approaching train and were, therefore, the proximate cause of his death. See, also, Boles v. Baltimore Ohio, supra (168 Ohio St. 551), wherein it was contended in the brief of plaintiff that patches of fog obscured the plaintiff driver's vision and that he was thereby confused.
Thus, the presumption of exercise of due care is overcome by evidence of circumstances such as failing to look and listen at a time and place to be effective. The rule seems to be clear that, when such inference of negligence arises, the burden is cast upon the plaintiff to rebut such inference. SeeBaltimore Ohio v. McClellan, Admx., 69 Ohio St. 142,68 N.E. 816, and Ziebro, Admx., v. City of Cleveland, 157 Ohio St. 489, 106 N.E.2d 161, holding that the burden is cast upon the plaintiff to dispel or counterbalance such inference or presumption. As succinctly stated by the Supreme Court of Texas in Golf, Colorado Santa Fe Ry. Co. v. Shieder, 88 Tex. 152,163, 30 S.W. 902:
"* * * When the undisputed evidence adduced on the trial establishes prima facie, as a matter of law, contributory negligence on the part of plaintiff, then the burden of proof is upon him to show facts from which the jury, upon the whole case, may find him free from negligence; otherwise, the court may instruct a verdict for defendant, there being no issue of fact for the jury."
In the instant case, for some unexplained reason, the unfortunate motorist, who nevertheless had control of the vehicle, thereby calling for the application of the res ipsaloquitur doctrine (Scovanner v. Toelke, 119 Ohio St. 256,163 N.E. 493; Weller, Exrx., v. Worstall, 129 Ohio St. 596,196 N.E. 637; and Manker v. Shaffer, 161 Ohio St. 285,118 N.E.2d 641), drove it upon the track in front of the approaching train and stopped. *Page 10 Upon this state of the case, in the absence of evidence, the jury is not permitted to speculate either as to whether the decedent had time to cross or whether the car stopped on the tracks as a result of circumstances over which decedent had no control.
Judgment affirmed.
SMITH, J., concurs.