An action was brought in the court of common pleas of this county to recover damages for the alleged wrongful death of the decedent, Jefferson H. Ordway, who was killed at Willow Brook stop, a regular local passenger stop of the defendant railway company, located along its electric railway line between Norwalk and Cleveland, and at a point a few hundred feet east of the *Page 319 corporation line of the first-named city. Upon trial the jury returned a verdict for $1,227 in favor of the plaintiff, Howard J. Ordway, administrator of the estate of the decedent, upon which, after the overruling of a motion for a new trial, judgment was entered. This proceeding in error is brought to reverse that judgment.
The plaintiff in error claims that the court below erred in refusing to direct a verdict for the defendant, that the verdict is manifestly against the weight of the evidence, that the court erred in its charge to the jury and in refusing to give certain requests of the defendant company, and that counsel for the plaintiff was guilty of misconduct in his argument to the jury.
There is evidence tending to show that the car of the defendant company was late, and running at the rate of about 35 miles per hour as it approached Willow Brook stop; that frequently, before the time in question, passengers intending to take west-bound cars had sat upon a plank seat between two posts on the south side of the track, where they could see the car approach around the curve, and as the car approached would go forward across the track ahead of the car, in order to board it upon the north side of the track; that for some time previous to the arrival of the car the decedent had been seated on this plank seat; that as the car approached he got up to go to the north side of the track for the purpose of entering the car as a passenger; that the motorman of the car saw him when the car was 200 or 300 feet from the stop, but did not stop the car until it had run about 200 feet beyond the stop; and that the decedent continued on across the track, and was hit by the *Page 320 north side of the front end of the car when he was about on the north rail.
The evidence is undisputed that the motorman of the car sounded the regular crossing signal, and later gave several short blasts; but there is considerable dispute in the evidence as to when the short blasts were sounded. The motorman testified that he saw the decedent approaching the track when the decedent was about 20 or 25 feet south of the track and the car about 300 feet from the stop, and that he then put on the air and commenced to blow his whistle, and that when the car struck the decedent the speed had been reduced to 20 miles per hour. The witness George Hacker testifies that he heard the usual whistle, and then several short, sudden whistles, one right after the other, as fast as the motorman could pull the string; that he was behind some bushes at the time, and immediately stepped out a distance of 10 feet, and saw the car; and that after he saw it, it went on a distance of 150 feet.
If we assume that the witness Hacker is correct in his testimony, the motorman could not have been right in his statement that the decedent walked 25 or 30 feet after the time he saw him, and that he began to give the sharp warning signals immediately upon seeing him. If the motorman was right in saying the car ran 200 feet after it passed the stop, then the car was 50 feet past the stop when Hacker first saw it, and if the car was going 20 miles an hour when it struck the decedent, at the stop, and its speed lessening, the inference arises that Hacker could have walked the 10 feet at a speed of 4 miles an hour, which is a fast walk for the average man while the car was going the 50 feet after it struck *Page 321 the decedent. The jury might well believe Hacker's testimony, and draw the inference that the whistle was blown about the time the decedent was struck. There was testimony of other witnesses with reference to the blowing of the whistles, more or less conflicting.
Counsel for plaintiff in error maintains that the principles announced by our Supreme Court in N.Y., C. St. L. Rd. Co. v.Kistler, 66 Ohio St. 326, 64 N.E. 130, are applicable to this case. We are of the opinion that they are not, for the reason that there is evidence tending to show that decedent was about to become a passenger upon the car of the defendant company, and the latter owed him a duty to exercise ordinary care to stop its car and permit him to enter the car, upon discovery that he was at or approaching the stop for that purpose. The Kistler case grew out of an accident which occurred at the grade crossing of a public highway and steam railway tracks, at which there was no stop.
The evidence tended to show that the defendant company was operating its car at a negligent rate of speed, in that it was approaching the stop so rapidly that it could not stop its car there for a prospective passenger or passengers who might be awaiting its arrival. The claim is made, however, that the decedent was guilty of contributory negligence as a matter of law. We are of the opinion that the decedent, if a prospective passenger, had a right, as he was about to cross the track, to assume that the car would stop for him at the established stop, unless in the exercise of ordinary care it was apparent to him that it would not so stop. With the evidence conflicting, as it is, as to the giving *Page 322 of the warning whistles, we are of the opinion that the case was one for the determination of the jury, and this court cannot say that the decedent was guilty of contributory negligence as a matter of law. We are also unwilling to find that the verdict is so manifestly against the weight of the evidence that this court should disturb it.
The defendant requested the court to charge the jury as follows:
"No. 2. If from the evidence in this case, you find that the motorman of the interurban car in question was keeping a lookout on the track ahead of the car as he approached the place of the accident, and while so doing his eyes took in Jefferson H. Ordway, as he approached the track of the defendant, I say to you as a matter of law that the motorman had a right to assume that Jefferson H. Ordway would keep away from the track at the point in question and not go upon the track within such close distance as to be struck by it."
"No. 4. I say to you as a matter of law that in the open country, on its own right of way, the defendant had a right to run the car in question at such rate of speed as the motorman might deem safe to the transportation of the passengers committed to his care, and that the alleged excessive speed of the car in question cannot be considered by you as a ground of negligence in this case."
Each of these requests the court refused to give. The first of them was clearly insufficient, in that it failed to qualify the statement by stating that the motorman could only assume that Ordway would keep away from the track until such time as by the exercise of ordinary care it appeared that he was going to cross the track. As to the other request *Page 323 above quoted, it clearly applies the rule in the Kistler case,supra, that a railway company may operate its trains at any rate of speed it may see fit, and that speed could not be considered by the jury as a ground of negligence. For the trial court to so charge would have eliminated the question of speed as a ground of negligence, upon the theory that the railway company owed no duty to operate its cars at such a rate of speed as ordinary care required with reference to one about to take the car as a passenger at a point where such car ordinarily stopped to take on and let off passengers. Refusal to give these requests was not error.
The attorney for the plaintiff, in his closing argument, used the following language:
"The Public Utilities Commission of Ohio, in approving and adjusting the rates of fare, to be paid by passengers, took into consideration the fact that there would be damage cases like this one, or similar thereto, and that the rates were fixed to cover damages in cases of this character, and they go on collecting fares from you and me."
This language was objected to and excepted to at the time, and no admonition was made by the court. While we could not approve this language if it had been made in the opening argument, it was made after counsel for the railroad company had made his argument, and may have been in reply to some statement made during the course of that argument. As the bill of exceptions is silent upon that matter, and does not disclose what was said by counsel for the defendant company, the presumption is that the court below did not err; accordingly in the present state of the record we are unable to say that an error was committed by *Page 324 the trial court in failing to admonish the jury. If it affirmatively appeared from the record that such statement was wholly unprovoked, and not in answer to previous argument, it would be wholly unjustifiable.
We find no prejudicial error upon the face of the record and the judgment will therefore be affirmed.
Judgment affirmed.
RICHARDS, P.J., and YOUNG, J., concur.