Jollay v. Pennsylvania Railroad

APPLICATION FOR REHEARING

No 1678. Decided June 23, 1941

BY THE COURT:

Submitted on application of appellant for rehearing.

It is apparent that our opinion generated more heat than light in the minds of counsel for the appellant. We would command a more careful and complacent reading of the opinion and also of the briefs of the parties in conjunction with the facts as appearing in the record.

It is first urged that the court brushed aside the one question for it to decide as determined by the trial judge and counsel for both parties and the question posed is as follows:

“If the jury decides that this crossing is dangerous by reason of the ob*519structions to view, may the jury further decide that blowing the whistle and ringing the bell is not a reasonably sufficient warning of the approach of a train? Or, is the jury deprived of the right to make that decision, by reason of the fact that the obstructions are not on the railroad right-of-way?”

We stated the matter for consideration upon the appeal as follows:

‘‘The one legal question presented is whether, under the facts appearing, there is an issue made as to the negligence of the defendant.”

and we answered this question in the negative upon a full consideration of all of the facts and circumstances appearing in the case.

If counsel and the trial judge had agreed upon a determinative question, it would not be binding upon us unless we concurred, but it is obvious .that counsel for defendant at no time agreed that the only question before the .court was that which is set forth in the application, nor do we have anything in the record which is convincing that Judge Krehbiel determined the motion upon an answer only to the subject matter of the question. We did consider and insofar as germane and material determined every proposition set forth in the question. The difficulty from the standpoint of the appellant is that upon this record this court concluded that as a matter of law the crossing under consideration was not especially dangerous because of the obstructions sets forth in the petition. So that, there was nothing for the jury to decide upon this question.

We might have been content to have made this determination and have given no consideration to anything other or further presented and argued in appellant’s brief but out of deference to counsel who had mace a careful and analytical study of the case in the light of the authority of Ry. Co. v Kistler, 66 Oh St 326, we followed the pattern of the brief and considered each and every question therein discussed.

The purpose of setting forth with particularity the distances that an approaching train could be seen by an automobilist moving toward the crossing from the north is so obvious thát we do not believe that it needs further elucidation.

The observation that this crossing was in the open country, in the sense that the term was employed in the Kistler case, was prompted by the insistence in appellant’s brief that it should not be so characterized.

We stand upon every statement of fact asserted in our decision and are satisfied that the record will support them.

The application will be denied.

GEIGER, PJ„ BARNES & HORNBECK, JJ., concur.