author: By REYNOLDS, J.

text:
    SMITH v. NEW YORK LIFE INS. CO.
    Common Pleas Court, Franklin County.
    No. 169749.
    Decided February 6, 1948.
    Horace Troop, Westerville, for plaintiff.
    Arnold, Wright, Purpus, Morris & Arnold, Columbus, for defendant.
   OPINION

By REYNOLDS, J.

In this action plaintiff is seeking to recover from defendant company the sum of $1,000. on an insurance policy, issued by defendant company, on her husband, in the sum of $1,000 with a provision that the sum of $2,000 would be paid in case the death of the insured resulted directly and independently of all other causes, from bodily injury'effected solely through external, violent and accidental means and occurred within 90 days after such injury, subject to certain exceptions, among which is the following: “Double indemnity shall not be payable if the insured’s death resulted from * * * war or any act incident thereto * * *”

After setting out the'terms of the policy, the petition alleges that while the policy was in full force and effect the insured met his death by accidental means in an explosion and fire at The Kilgore Mfg. Co. at Westerville, Ohio.

Defendant paid $1,000 on the policy in question, and the plaintiff is seeking to recover $1,000 additional by reason of the policy provisions aforesaid.

The answer alleges that the death of the insured resulted as an incident of war, in that it was occasioned by reason of an explosion at the Plant of The Kilgore Mfg. Co. where the insured was working, and in which plant there was being manufactured high explosive target bombs for the use of the U. S. Government in the prosecution of war, and that there is no further liability on the policy.

Upon the trial a jury was waived, and the case was submitted to the Court on an agreed statement of facts as follows:

“1. Prior to the outbreak of World War II and until March, 1942, the Kilgore Manufacturing Company operated a plant at Westerville, Ohio, at which plant said company manufactured toy cap pistols and caps for use in such pistols. In March, 1942, said company converted entirely to war work and thereafter and during 1945 was engaged exclusively in the manufacture of various kinds of incendiary bombs, flares and explosive bombs known as target bombs for use by the armed forces of the United States in connection with bombing and other similar military and naval activities in World World II.
“2. The target bombs hereinabove referred to each weighed approximately 250 lbs. and consisted of a detonator, powder charges and four kinds of inflammable flare materials and were dropped on targets on bombing missions.
“3. Prior to February 26, 1945, Harold W. Smith, the insured, was employed by The Jaeger Machine Company of Columbus, Ohio, and on said date entered the employment of said Kilgore Manufacturing Company. His duties and the work performed by him from February 26th to and including March 2, 1945, the date of his death, consisted of carrying the explosive and flare materials used in the target bombs to a room, known as the loading room, where the target bombs were filled with said materials, and also of miscellaneous tasks in.connection with the loading of the target bombs.
“4. The building in which the loading room was located had been used prior to March, 1942, by the Kilgore Manufacturing Company for the manufacture of the caps as referred to above. When said company began to manufacture said target bombs, the machinery used in the manufacture of said caps was removed'from said building and the equipment used in connection with the loading of the target bombs was installed. No other changes were made in connection with said building.
“5. On March 2, 1945, while the loading of target bombs was in process in the loading room, the explosive materials therein exploded from an unknown cause and the insured, who was in the loading room at the time engaged in the performance of his said duties, was killed as a result of the explosion.”

The only question necessary to a decision is whether the death of the insured was the result of or an incident of war.

It is the contention of plaintiff that the term “incident thereto” as used in the policy is to be interpreted as an act involving combat or some act immediately incident to an act of combat, and that since the term itself is ambiguous it must be construed against the insurer.

This latter is of course true if the premise, namely that the term is ambiguous, is true. Among the cases relied upon by plaintiff as supporting the claimed meaning of “incident thereto” is that of Johnson v. Mutual Life Insurance Co., 154 Ga. 653, 115 S. E. 14, where the following was held: “Under a policy in which the insurer agrees to pay double indemnity in case of the death of the insured resulting from bodily injury effected solely through external, violent, and accidental means, a provision, ‘that this double indemnity shall not be payable in the event of the insured’s death as a result of military or naval service in time of war, * * * nor if such death be caused directly or indirectly, wholly or partly, by * * * war, or any act incident thereto,’ will not relieve the insurer from liability, when the death of insured did not result from his service in the military in time of war, or where his death was not caused directly or indirectly, wholly or partly, by war, or by some act incident thereto. When the insured was killed on June 27, 1919, while in the military service of the United States, and while he was being transported on a troop train from Ft. Oglethorpe, Ga., to San Francisco, Cal., to-be embarked at the latter place for Honolulu, to join other military forces of the United States at that place, his death resulting from his being struck by the girder of an overhead bridge over which such trooptrain was passing, near Granger, Wyo., the death of the insured under these circumstances would not exempt the insurer from the payment of the double indemnity, under the above provision of the policy under which his life was insured; especially where it was not shown by the insurer that the death of the insured was the result of liis military service, or was caused by war, or an act incident thereto, and when it appears that his death was due to a fatality which befalls soldier and civilian alike.”

The difficulty we find in attaching any weight to that decision in connection with the present case is that at the time the insured was killed, which was June, 1919, the war was over and the insured was neither engaged in war nor any act incident thereto, and the limitation in the policy applied only “in time of war.”

In its decision the Court said, “His death was not due to war, nor to some act incident thereto. It was not shown that he was even being transported to the scene of any war. So far as appears, it was the transportation of troops upon a peace footing.” (Emphasis ours.)

Why the Court made such an observation is difficult to understand. It is clear that the troop movement in which the insured was engaged was a peacetime movement, of which the Court should have taken judicial notice. It was, therefore, clear that the death did not occur during war time, so that the exception in the policy had no application, and the decision can in no way be persuasive of a liability in the instant case.

The Court seems to have tried to make a simple question appear difficult.

Counsel for plaintiff take the position that the exceptions must be drawn close to the battle front and are not intended to include civilian workmen. This ignores the express provisions of the policy. The exemption is not confined to those in military service nor to the locale or vicinity of battle. The term war has a far broader meaning than combat or battle and relates to civilians, soldiers and sailors alike and to any place irrespective of its proximity to or distance from actual conflict.

The reasoning indulged by counsel and some of our courts take into consideration only the insurer and the particular insured and dwell primarily on the fact that the exceptional provisions are solely for the benefit of the insurer.

This is unfortunate as it misses another purpose of the exceptions which should be considered as relating to policy holders in general. Rates of life insurance premiums are based upon experiences of life expectations, figured on ordinary conditions. Experience teaches, with great accuracy, how many persons out of a given number and a given age will die in a given time, and also the percentage who will meet violent deaths.

The premiums, based on these experiences are calculated so that insurers will be able to pay the beneficiaries, when death occurs, but if there is an unprecedented increase in the number of deaths it could well be that an insurer would not be able -to meet its obligations, so that it is manifest that policy holders are themselves vitally interested in the financial responsibility of the insurer.

To guard against possible' emergencies increasing hazards, provisions are inserted in insurance policies which are calculated to preserve the insurer’s ability to meet its obligations, thus protecting its policy holders as well as itself, and enabling it to maintain premium rates on a reasonable basis. Thus, we find that double indemnity will not be paid in case of violent death from self destruction, from taking poison or inhaling gas either voluntarily or otherwise, from committing an assault or felony, from engaging in riot or insurrection, from participating in aviation, as well as from war or any act incident thereto. It is at once apparent that all of these conditions are conducive to a marked increase in mortality, and are in the main of such a nature that there is no basis or method whereby a premium rate could be fixed warranting the coverage for such losses which would be actuarily sound. Therefore the exceptions.

Is the term “incident to war” an ambiguous term as plaintiff contends? One of the definitions of the word “incident” as given in standard dictionaries is “apt to occur”. It would therefore, seem that those things which are “apt to occur”, and do occur as a result of war and which do not occur otherwise are incidents of war.

Thus we find in the decisions that Courts have held that one killed in army training in the United States in a tank explosion, an officer killed in an airplane crash in the United States, a seaman lost when a destroyer convoying merchant ships was torpedoed on Oct. 30, 1941 before the U. S. was at war, a purser on a U. S. Merchant ship, carrying a war cargo of cotton, oil etc. which collided with another ship in a. convoy, resulting in his death, that death was incident to war and double indemnity could not be collected.

In the case of Eggena v. New York Life Ins. Co., 236 Iowa 262, 18 N. W. 2d 530, the 6th syllabus reads as follows: “When the insured, a member of army tank crew in training in wartime, was fatally injured when tank fell from bridge while proceeding in routine training convoy to bivouac area, death resulted directly or indirectly from ‘war or act incident thereto’ within life policy excluding double indemnity therefor.”

In its opinion the Court said: “Insured’s death was not the result of disease but did occur while in the military service and resulted directly from the carrying on of an act which was an essential part of the prosecution of war. It was not an act incident to anything but war.” (Emphasis ours.)

The Court then quotes from Stankers v. New York Life Ins. Co. 312 Mass. 366, 44 N. E. (2d) 687, 688, as follows: “As in the case of any other contract, the words of an insurance policy, in the absence of ambiguity, must be given their usual and ordinary meaning. The term ‘war’ is not limited,, restricted or modified by anything appearing in the policy. It refers to no particular type or kind of war, but applies in general to every situation that ordinary people would commonly regard as war. There is nothing in the policy that indicates that the word was used in any vague, indefinite or ambiguous sense. A policy of insurance whose provisions are plainly and definitely expressed in appropriate language must be enforced in accordance with its terms.”

And then observed as follows: “The court held, citing cases, that, although the United States was not at that time at war, the death of insured arose directly or indirectly from war and was not a risk covered by the double indemnity provisions of the policy and judgment was rendered for defendant. This court has held to the rule quoted above in the construction of exemption clauses. See Field v. Southern Surety Co., supra [211 Iowa 1239, 235 N. W. 571], and cases cited: Swanson v. Provident Insurance Co., supra [194 Iowa 7, 188 N. W. 677], In the exemption clause in the present case, following the general rule, there is no need for construction since there is nothing ambiguous about its wording.” (Emphasis ours.)

The wording of the policy in that case is identical with the provisions of the instant ease and this court agrees with the statement of the court in that case that the wording is not ambiguous, so that the premise from which counsel argue that the terms of the policy are ambiguous and the policy must be construed against defendant fails and the conclusion therefore necessarily fails. The argument, that since there have been several cases, involving the same or similar provisions in the insurance policies, this is evidence of the ambiguity of the meaning of the words used, is not sound. An examination of the various facts in those cases discloses that the difficulties did not arise from an interpretation of - the policy provisions but in the relation of the particular facts to those provisions.

Certainly there can be but little argument, but that the raising, training, equipping and transportation of troops, and the transporting, either by land, sea or water, of munitions of war for use in the waging of an existing war, are incidents of that war, since they are acts which are not incident to anything but war. Is the actual manufacture and handling of high explosives designed exclusively for use in the same war to be considered in any other light than that the same constitute acts incident to war? As stated in the case of Eggena v. New York Life Insurance Co., supra, such acts are incident to nothing other than war, and without war would not occur.

There is a wide difference between making and handling high explosives, the only use of which is for the prosecution of a war and the farmer who raises food, which ultimately may be used to feed the countries’ soldiers, or cotton which may be used in the manufacture of deadly explosives for use in the prosecution of the war. Such acts may be incident to hundreds of activities other than war.

In the instant case the insured was directly engaged in the preparation of high explosives for exclusive use in the prosecution of the war in which this country was engaged. But for the war he would not have been so engaged, so that the conclusion must be reached that he was engaged in an act incident to war and the explosion which caused his death was likewise an act incident to war and that the provision in the policy for payment of double liability does not apply since the facts of insured’s death came within the plain provisions of the exceptions.

There is no question taut that “A provision in life policy affording double indemnity unless death results from war or any act incident thereto is valid.” See Eggena v. Insurance Co., supra. Nor is the application of the exemption to civilian workers contrary to public policy as counsel argue. On the contrary it is in the interests of public policy since as heretofore pointed out it affords a protection to the insurer against unusual hazards which are so uncertain as to make it difficult or impossible to anticipate by way of increased consideration for the risk, and protects other p'olicy holders whose security might well be jeopardized were the insurer obligated to pay for losses due to increased hazards for which it has not received commensurate consideration.

The face of the policy namely $1,000 has been paid. The extra amount sought to be recovered is payable upon the happening of a particular event, with certain exceptions.

The Court has concluded that the death of the insured comes within the exceptions, that is, that it resulted from an act incident to war and that there is no liability on the part of defendant to pay the double indemnity. Judgment is therefore entered for defendant for costs.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. LIFF, etc., Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 1971.
    Decided December 10, 1948.

      Hon. Hugh S. Jenkins, Atty Geni., Frederick L. Orum, Asst. • Atty Geni., Robert E. Hall, Special Counsel, Columbus, for plaintiff-appellee.
    Froug & Froug, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on law from the Common Pleas Court of Montgomery County, Ohio, which entered a judgment on verdict returned in favor of the plaintiff-appellee in the amount of $227.21 as compensation for injuries sustained by Christine Schmitz on May 13, 1942, while employed as a waitress in a cafe owned and operated by defendant-appellant, J. Abe Lift.

. The defendant not being a contributor to the State Insurance Fund, this action was instituted in the name of the State under the provisions of §1465-74 GC after an award in favor of the claimant, had been made by the Industrial Commission of Ohio.

The defendant assigns as error that the verdict and judgment is against the manifest weight of the evidence; that the court erred in refusing to direct a verdict for the defendant; and, for the admission of evidence over objection prejudicial to the defendant.

The defendant contends that the injury was not sustained in the course of employment. The Industrial Commission on a rehearing found that the injury was sustained in the course of employment and such finding is prima facie evidence of the truth of such fact. Sec. 1465-74 GC. Unless overcome by sufficient evidence the finding of the commission will support the verdict.

The defendant introduced into the evidence the original application in which the applicant stated that the injury was sustained when a patron struck at her and grabbed her causing her to lose balance and fall to the floor causing her to receive a sprained ankle and twisted hip and knee, and, also, the first order of the commission denying an award on the ground that the injury was not sustained in the course of or did not arise out of her employment. On a rehearing before the commission, and upon trial of the case in the Common Pleas Court, the claimant testified that the altercation between her and the patron had ended and that as she turned to perform her duties as a waitress she slipped on the floor which was wet. The claimant was thoroughly cross-examined regarding the altercation which had taken place immediately before the injury. On this issue, which was the principal issue in the case, the evidence was in conflict. The evidence presented a proper case for submission to the jury. The jury resolved this issue against the defendant. -We can not say that the verdict and judgment was against the manifest weight of the evidence.

On cross-examination a witness for the defendant was required over objection to answer whether he had ever been convicted of a crime. This evidence was admissible to test his credibility. Over objection the witness was required to answer how often he had been convicted of a crime. Cross-examination of a witness not relevant to the issue rests in the sound discretion of the court, and a judgment will not be reversed unless it appears from the record that such discretion has been abused to the prejudice of the party complaining. Volume 42 O. Jur. pages 335, 365; Kornreich v. Industrial Fire Ins. Co., 132 Oh St 78; Smith v. State, 125 Oh St 137; Kereney v. State, 109 Oh St 64; Hanoff v. State, 37 Oh St 178; Wroe v State, 20 Oh St 460. In our opinion the court did not abuse its discretion and prejudicial error was not committed.

Finding no error in the record the judgment is affirmed.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.


author: By SKEEL, PJ.

text:
    GREENE, Plaintiff-Appellee, v. GREENE, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21201.
    Decided May 9, 1949.

      Charles A. Jilek, Cleveland, for plaintiff-appellee.
    Hartshorn, Thomas, Abele, Mitchell & Edelman, Howell Leuck, H. Palmer, Cleveland, for defendant-appellant.
    (CARPENTER, J, of the 6th District sitting by designation in place of MORGAN, J.)
   OPINION

By SKEEL, PJ.

This cause comes to this court on an appeal on questions of law from a final order of the common pleas court of Cuyahoga County overruling a motion to vacate a decree of divorce entered March 24, 1948.

The plaintiff filed his petition for divorce on July 26, 1946. Service was had upon the defendant, Frieda Greene, on July 30, 1946. Up and until such service of summons, the defendant had been living in the home of the parties at 1330 Allen Court, Rocky River, Ohio. Upon service of summons, she moved to the home of her mother and sister in Medina County and has resided there since that time. The parties were married in November, 1925. There were two children by said marriage, Lloyd M. Greene, aged 17 years at the time the petition was filed, and Doriss E. Greene, aged 19 as of that date.

The parties were the joint owners of the residence property at 1330 Allen Court, occupying it as their home, they having purchased such property for $5500.00 a short time after they were married. At the time of the decree herein there was a balance due on the mortgage of $700.00.

After the defendant was served with summons, she employed counsel. She first talked to a Mr. H. Palmer, a lawyer admitted to practice of law but who was working as an insurance adjuster and who did not therefore have an office. Mr. Palmer took Mrs. Greene to Mr. Howell Leuck, a member of the firm of Hartshorn, Thomas, Abele, Mitchell & Edelman with offices at 440 Leader Building. An answer was prepared and filed on August 1, 1946, which disclosed the names of Hartshorn, Thomas, Abele, Mitchell & Edelman and Howell Leuck, and H. Palmer, as counsel for the defendant, setting forth their office address at 440 Leader Building and also giving their telephone number.

The defendant filed a motion for temporary alimony on August 5, 1946. This motion was heard and granted on October 18, 1946. At one time while this action was pending, Mr. Leuck testified that there was an extended meeting between the parties and the lawyers in Mr. Leuck’s office in which an attempt was made to settle the division of property. While this effort failed, yet it shows without question that everybody involved in the case knew that Mr. Howell Leuck was conducting defendant’s case.

Thereafter, the case was published on the active list for trial as a contested case beginning March 10, 1948 and continuing daily until March 22. The notice advised that the case would be on for hearing at 11 A. M. March 22, 1948. The notice which was listed under the correct number, incorrectly named counsel for the defendant as H. Palmer, leaving out Hartshorn, Thomas, Abele, Mitchell & Edelman and Howell Leuck. This omission resulted in the case not being noticed by the defendant’s lawyers so that when it was called for trial at 11 A. M. on March 22, 1948, the defendant was not in court and her lawyers were also absent. The court, after a fifteen minute wait, and without making any attempt to reach the defendant or her lawyers by telephone, proceeded to hear the case as an uncontested case and after such hearing ordered a decree for the plaintiff which was presented to the court, signed and journalized on March 24, 1948.

By this decree, the parties were divorced for the aggression of the defendant wife. The plaintiff husband was given custody of the children. All the defendant’s interest in the home that was jointly owned by the parties was taken away from her and given to the plaintiff husband as was her interest in the household furnishings. The decree further provided that the plaintiff pay the defendant as and for alimony ten dollars per week for five years beginning April 1, 1948, subject, however, to certain contingencies hereafter to be noted. In other words, she was granted a contingent right to receive in weekly installments an allowance as and for alimony which in no event could exceed the sum of $2600.00.

There was some evidence in the record that the defendant was in poor health and that she was operated upon about a year before the divorce case was begun. Except for the operation, the state of the evidence as to defendant’s health during this period is in conflict.

It is the claim of the defendant that:

“(a) The action of the court in taking away from Frieda Greene, her one-half interest in the homestead, which had been jointly acquired, was arbitrary, unjust and contrary to' law,
(b) The order and decree should have been set aside on grounds of substantial justice and because the defendant appellant was deprived of her day in court through no fault of her own.”

This court on February 7, 1949, decided the case of Permillia Martin v. William T. Martin in which the trial court’s refusal to grant a petition to vacate a decree of divorce was reversed and the cause remanded for retrial for the reason that under the facts presented, to overrule such petition constituted an abuse Of discretion.

The facts in the Martin case were somewhat analogous to these which are now presented in this case. If anything there was less reason to disturb the decree of divorce in the Martin case than is true here because the petition to vacate the decree in the Martin case was after term. Nevertheless, in that case this court said:

“In matters dealing with family relations, the rules of pleading and other procedural matters should be liberally construed. * *

In the case now being considered, the defendant filed her answer long prior to the date the case was set for hearing. The court, through' the clerk, failed to publish the case for trial in the manner that would bring the time the case had been set for trial clearly to the attention of her lawyers. She should not be penalized for the error of omission of the clerk She cannot be said to have been guilty of any neglect in attending to her defense.

The decree entered after the trial of the case as an uncontested action takes from the defendant all interest in the property which had been her home, the title of which was in the names of both parties, and which had been purchased and paid for out of the familiy income, as well as all rights to the household furniture of the parties.

The decree as indicated above, also provided that the plaintiff should pay the defendant $10.00 per week for five years as and for alimony. It was provided however, that the duty to make such payments should terminate in the event the defendant remarries or in the event of her death. The decree then provides as follows:

“And further, in the event that the defendant shall inherit any property within the five year period, then and in that event said award as above, shall be certified. (Terminated)”

Sec. 11993 GC provides that when a divorce is granted for the aggression of a wife, she shall be entitled to such “share of her husband’s real and personal property, or both, as it (the court) deems just.” There is no provision for alimony under such circumstances.

The question of whether or not an award in a definite amount or made payable for a definite period, in installments, and designated as alimony to a wife in a case where the divorce is granted to the husband because of the wife’s aggression, is in fact alimony, or should be considered as a division of property as authorized by §11993 GC is a question upon which the cases are in conflict. The Ohio cases seem to hold that except where the amount is payable for an indefinite period or an uncertain amount payable out of the personal earnings of the husband, that the court should construe such an order as a division of property. In the case of Heflebower v. Heflebower, 30 Ohio Cir. A. 545, the 4th and 5th paragraphs of the syllabus provide:

“4. Where the court mákes an order for the payment of a monthly sum for an indefinite time, not out of property then owned by the husband, the total amount of which is neither fixed nor ascertainable the award is not a share of the husband’s real or personal property.”
“5. If a court makes a decree which is not within the powers granted to it by the law of its organization, the decree is void and it may be attacked collaterally in proceedings in contempt to enforce it.”

See also: Kristo v. Kristo, 23 Oh Ap 29, and Lakewood Masonic Benefit Assoc. v. Jones et al, 68 Oh Ap 109-113.

In the case now being considered, the court gave all the property real and personal, owned by the parties, at the time of the decree to the husband, including the separate property of the wife, and by a separate order directed the payment of weekly installments of “alimony” for a definite period'but subject, however, to three contingencies. Such an award when considered in the light of the other provisions of the decree is not a granting to the wife a share of her husband’s property, but an attempt to award “alimony” and as such is void, the court being without power to award alimony under the provisions of §11993 GC.

The defendant is now a person of advanced years. The evidence also tends to show that because of her long period of service as a housewifie and her present state of health it would be difficult for her to fit into commercial employment. The husband’s ability to continue to make his way is in no way changed by these proceedings. If the defendant had b.een permiitted to present her evidence, a far more equitable result would undoubtedly have obtained. At least the defendant would not have been put to such a marked disadvantage because of an error in publishing the notice of the trial of the case.

For the foregoing reasons, the order overruling the defendant’s motion for new trial is reversed and the cause is remanded with instructions to grant such motion, and for further proceedings according to law. Exceptions noted. Order see journal.

HURD, J, CARPENTER, J, concur.


text:
    MATTIS, Plaintiff-Appellee, v. VANCIL, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2043.
    Decided March 2, 1949.
    Arthur W. Meyring, Dayton, for plaintiff-appellee. „
    D. H. Wysong, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to dismiss the appeal on questions of law and fact on the ground that it is not a chancery action. An examination of the record discloses that this is a civil action for the recovery of money only. The motion to dismiss the appeal on questions of law and fact will be sustained. The case will be retained as an appeal on questions of law.

The court orders a bill of exceptions, assignments of error and briefs to be filed in conformity to the provisions of Supplement to Rule VII.

Counsel will draw the proper entry.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By MILLER, CJ. MARTIN, CJ

text:
    DETROIT, TOLEDO & IRONTON RAILROAD CO. v. YELEY.
    United States Court of Appeals, Sixth Circuit.
    No. 10471.
    Decided December 22, 1947.
    W. W. Keifer and H. S. Keifer, Springfield for appellant.
    Frank Nevius, Springfield, for appellee.
    Before HICKS, MARTIN and MILLER, Circuit Judges.
   OPINION

By MILLER, CJ.

The appellant, Detroit, Toledo and Ironton Railroad Company, appeals from a judgment in the sum of $3,500 rendered against it in an action filed by the appellee, George D. Yeléy, seeking damages resulting from an accident at a railroad crossing. Appellant complains of the refusal of the trial judge to direct a verdict in its favor, both at the close of the appellee’s evidence and at the close of all the evidence in the case.

The petition, filed in the Court of Common Pleas of Clark County, Ohio, states that the accident occurred on July 14, 1943, at about 4:40 p. m. at the intersection of appellant’s railroad tracks and Park Avenue in Springfield, Ohio, and that appellee’s automobile, which the appellee was driving in a southwardly direction on Park Avenue, was hit by a freight train operated by the appellant and proceeding eastwardly into the city. The automobile was destroyed and severe injuries suffered by the appellee. The petition alleges that the appellant was negligent in operating the train without due regard for the rights of persons in the use of the highway; in operating the train without sounding the whistle or ringing the bell or giving any signal of its approach; in failing to exercise ordinary care to avoid striking the automobile of appellee; in failing to have its train under control and to keep a lookout for the appellee; and in maintaining a large pile of earth along its right-of-way and so close to Park Avenue as to obscure the view of travelers using Park Avenue and approaching the railroad right-of-way; which negligence caused the accident and injuries complained of. Appellant denied the alleged negligence and pleaded contributory negligence on the part of the appellee. The questions presented are — (1) was the evidence sufficient to take the case to the jury on the issue' of appellant’s negligence, and (2) did the evidence on behalf of the appellee show contributory negligence on his part as a matter of law, so as to require the trial judge to direct a verdict for the appellant?

We find little difficulty with the first question. Although the evidence is contradictory with respect to the operation of the train at the time of the accident, yet the record contains substantial evidence on behalf of the appellee that the appellant was operating the train in a negligent manner and that this negligence was the proximate cause of the accident. The appellee testified that the train was traveling within the city limits at least 35 to 40 miles an hour, and a disinterested eye-witness named Dyer estimated its speed at around 30 miles an hour. The train continued on for about 500,feet before stopping after the accident. Three witnesses, the appellee, Dyer and another disinterested witness named Walker, testified that they did not hear any train whistle or ringing of the bell, although they were very close to the scene of the accident, and in a position to hear such signals. Sec. 8853 GC provides that when an engine is approaching a highway or a town crossing where the view of such crossing is obstructed the whistle should be sounded at a distance of not less than 80 and not farther than 100 rods from such crossing and the bell shall be rung continuously until the engine passes the crossing. There is nothing in the record to justify the rejection of the foregoing evidence from credible witnesses. Contradictory evidence from appellant’s witnesses raised a clear jury question. The evidence also showed that the area at the northwest corner of the intersection had been used as a city dump, resulting in the accumulation of a large pile of earth with accompanying weeds and grass. The record contains much evidence on behalf of the appellee to the effect that this pile of earth, arising to a height of approximately 8 feet at its peak, obstructed the view between the railroad track and an automobile going south on Park Avenue and that the appellant had permitted this obstruction with the uncut weeds and grass to encroach on part of its right-of-way in close proximity to its track in addition to its existence on the city property at the corner. Whether or not this earth and debris was partly on the right-of-way of appellant and whether or not it constituted an obstruction to a traveler’s view of the right-of-way were questions of fact bearing on the issue of appellant’s negligence for consideration by the jury. The trial judge properly instructed the jury that if it found that the dump, and the weeds and brush connected therewith, was not on the right-of-way of the appellant then it had no control over it and -its employees were not required to take such things into consideration when approaching the crossing, but on the other hand if it extended over and upon appellant’s right-of-way so as to form an obstruction to the view along the right-of-way to the west of a traveler traveling south on Park Avenue then its presence should have been taken into consideration by the employees of the railroad company operating the train, as under such circumstances the railroad company had control over it and should have had the obstruction to the view of the traveler on the highway removed. We believe the evidence justified the submission of the issue of negligence on the part of appellant to the jury.

On the issue of contributory negligence on the part of appellee the evidence was as follows: There was approximately 287 feet of straight track to .the west of Park Avenue from which direction the train approached. There was approximately 250 additional feet of track further west and curving to the south to an overhead bridge. There was a slight upgrade of approximately one percent from the bridge to Park Avenue. The appellee, 46 years of age, was working as a carpenter at the Ohio Steel Foundry, which was located north of and close to the intersection in question. He quit work at 4:30 p. m., went to his car in a parking lot just off of Park Avenue, pulled out into a line of cars going south on Park Avenue and proceeded a short distance to the intersection. It was a bright day and dry. He had worked at the Ohio Steel Foundry for about 60 days before the accident, had gone over the crossing back and forth every day he worked, and was very familiar with it. The automobile ahead of appellee crossed the track. Appellee testified that when he reached the intersection he stopped his car about 8 or 10 feet from the tracks, looked both ways and listened; that the car windows were down, and neither hearing nor seeing an approaching train he started across the intersection in second gear; that when he was in the middle of the track he discovered the train 3 feet from him to the west, and his car was immediately struck by it in the right front door. The automobile with the appellee in it was caught on the front of the engine and carried in that position about 500 feet eastward where the train was stopped. Appellant testified that the pile of earth on the northwest corner shut off his view to such an extent that he. had to be almost on the track before he could see down the track to his right. Several other witnesses testified that a car would have to come close to the track, some 5 or 10 feet from it, in order to obtain a clear view of the track to the west. A witness, Thornburg, testified for the appellee, that a clear view -of the track to the west could be obtained at a point 5 or 10 feet from it.

The case having been removed from the state court to the U. S. District Court on account of diversity of citizenship, is controlled by the Ohio law. The Ohio law places a duty upon a traveler upon a highway when approaching a steam railroad crossing to look and listen for the approach of trains before crossing, at a place and in a manner that will make the looking and listening effective. “The duty is definite, and is that he must look as well as listen, and that he must look from a point and at a time that will make the looking effective to apprise him whether danger is near or not.” Detroit, T. & I. R. Co. v. Rohrs, 114 Ohio St., 493, 503, 151 N. E., 714, 717. Appellant relies upon that case in support of its contention. The facts in that case are very similar to the facts in the present case including the testimony of the automobile driver that as he approached the crossing he both listened for an approaching train and, kept looking continuously in both directions for an approaching train, and that he did not see the locomotive until it was just ready to strike his automobile. The Supreme Court of Ohio said in that case “It is said that with this evidence the case must go to the jury to determine whether Rohrs did look and listen for the approach of trains from the south, and, if the jury find that he did look, then, even though he did not see, still he might recover. * * * Surely it will not do for one to claim the right to recover simply because he has looked and did not see, if the conditions are such that, had he looked, he must have seen. When he says he did look, and the conditions establish the fact that any one who looked would have seen, then, if he says he did not see, his own evidence establishes the fact that he did not look, though he may think he did. To hold otherwise would simply be a manifest absurdity, and the doctrine that the traveler in a vehicle upon the highway when coming to a railroad grade crossing must look and listen, might as well be abandoned if one so placed, in broad daylight, can say that he looked in a given direction where there was a locomotive moving toward the crossing, and not farther than 75 feet away, and that he could not see it. * * * In view of Che undisputed evidence in this case as to Rohr’s negligence, the trial court should have granted the motion to direct a verdict for the defendant.” We believe that ruling is controlling in the present case. In both the Rohrs case and the present case there was an obstruction to the traveler’s view of the railroad right-of-way when the traveler was a certain distance from the track. But as pointed out in the Rohrs opinion, at a point closer to the track the obstruction to the view no longer existed. As observed in Moss v. Pennsylvania R. Co., 7 Cir., 146 F. 2d, 673, 676, “That there was such a spot is certain” regardless of just where that spot might be. In the present case the evidence shows that there was a spot where a view of the track and any approaching train was clearly visible. A picture of the track, filed as an exhibit, shows that at a point 25 feet north of the center of the intersection, there was a clear view of the track to the west as far as the curve to the south, and that a train on the track could without doubt be seen as far distant as the overhead bridge to the southwest, more than 500' feet away. Such evidence should have full consideration on a motion for a directed verdict. Backus v. Taplin, 7 Cir., 81 F. 2d, 444, 447; A. B. Small Co. v. Lamborn & Co., 267 U. S., 248, 45 S. Ct., 300, 69 L. Ed., 597.

The ruling of the Rohrs case has been approved and followed in several subsequent Ohio cases. Pennsylvania R. Co. v. Rusynik, 117 Oh St, 530, 159 N. E., 826, 56 A. L. R., 538; Pennsylvania R. Co. v. Moses, 125 Oh St, 621, 184 N. E., 8; Patton v. Pennsylvania R. Co., 136 Oh St, 159, 16 O. O., 114, 24 N. E. (2d) 597; Lang, Adm’x. v. Pennsylvania R. Co., 59 Oh Ap, 345, 13 O. O., 135, 18 N. E. (2d), 271; Grove v. City Ry. Co., 78 Oh Ap, 37, 33 O. O., 396, 64 N. E. (2d), 429. The Patton case is the latest ruling of the Supreme Court of Ohio in railroad crossing accident cases, which has been called to our attention. The Court said in that case, in holding that the trial court should have directed a verdict for the defendant, — “Here was a 60-mile-an-hour train rushing toward him not over 240 feet away when he must have been in a place of safety 40 feet from the tracks. At his slow rate of speed he could have stopped his truck almost instantly. He proceeded, nevertheless, upon the tracks and attempted to cross over ahead of the train when it was less than three seconds away.

“We think it cannot be said that such conduct on his part manifested the exercise of due care, or that his conduct was not the proximate cause of his death.” [136 Oh St, 159, 16 O. O., 114, 24 N. E. (2d), 601.]

In applying the rule in Lang, Adm’x, v. Pennsylvania R. Co. [59 Oh Ap, 345, 13 O. O., 135, 18 N. E. (2d), 274], supra, the Court analyzed it as follows: “The rule that such looking and listening must be at such time and place and in such manner as will be effective to accomplish the ends designed thereby, must necessarily comprehend looking and listening at the last time and place where a traveler could stop the conveyance in which he is riding and avoid a collision between the same and a train or trains being operated on such railway track or tracks. The omission, so to do, without a reasonable excuse therefor, is negligence and will defeat an action by such person or his administrator for an injury to which such negligence contributes.” (Emphasis ours.) Since the law of Ohio, as expressed by the Courts of that State, control the decision in this case, the Ohio rule is not superseded or modified by rulings of the U. S. Supreme Court or of our Court involving the application of the Federal Employers Liability Act or in negligence cases decided prior to April 25, 1938. Ellis v. Union Pac. R. Co., 329 U. S., 649, 653, 67 S. Ct., 598, 91 L. Ed. — ; Erie R. Co. v. Tompkins, 304 U. S., 64, 58 S. Ct., 817, 82 L. Ed., 1188, 114 A. L. R., 1487. This Court has previously followed the Rohrs ruling in a case from Ohio involving facts quite similar to those in the present case, holding that the District Court erred in not directing a verdict for the railroad company at the close of all the evidence. Baltimore & O. R. Co. v. Joseph, 6 Cir., 112 F. 2d, 518, certiorari denied, 312 U. S., 682; rehearing denied, 312 U. S., 714.

Following the entry of judgment the appellant moved to set aside the verdict and judgment and for judgment in its favor in accordance with its previous motion for a directed verdict, or in the alternative for a new trial, also provided by Rule 50(b), Federal Rules of Civil Procedure, 28 U. S. C. A., following Section 723c, which motion the trial court overruled. In accordance with the views above stated, this motion should have been sustained, the verdict and judgment set aside, and judgment entered for the appellant. The case is remanded to the District Court for action in accordance with the above views.

DISSENTING OPINION

MARTIN, CJ

(dissenting).

I would affirm the judgment. The majority opinion, as I conceive, correctly states that the record contains substantial evidence that the appellant railroad company was operating its train in a negligent manner, and that this negligence was the proximate cause of the accident.

But it is held that the district judge should have directed a verdict in favor of the appellant on the issue of contributory negligence, primarily upon the authority of the pronouncement in Detroit, T. & I. R. Co. v. Rohrs, 114 Oh St, 493, 503, 151 N. E., 714, 717, that the appellee was under definite duty to look as well as listen, “and that he must look from a point and at a timé that will make the looking effective to apprise him whether danger is near or not.” This doctrine, as is stated, was approved and applied in Patton v. Pennsylvania R. Co., 136 Oh St, 159, 16 O. O., 114, 24 N. E. (2d), 717. In the circumstances of each of these cases, the Supreme Court of Ohio held that the trial court should have directed a verdict for the defendant.

To my thinking, the facts of each of the cited cases present a much stronger showing of contributory negligence on the part of the respective plaintiffs than the evidence reveals upon the part of the plaintiff in the case at bar. Without entering upon a long factual discussion in a dissenting opinion, I desire merely to comment that, in the Patton case, the opinion asserts that under the undisputed facts the plaintiff’s decedent, when he reached a point 65 feet south of the tracks, had a clear ciew of the headlight of the engine for 582 feet east of the crossing and that, when he was at a point 40 feet south of the tracks, he could have seen the headlight at an even greater distance. So, the deduction was drawn that unquestionably he .could have seen the headlight of the approaching train, and was chargeable with having seen what could have been seen. In the Rohrs case, the plaintiff had lived for more than three years within about 100 feet of the railroad crossing and, on the clear morning of the accident, had started from that distance driving toward the crossing in low gear at a speed not in excess of 5 or 6 miles per hour; and, after passing a point 20 feet west of the railroad track, had even slowed down from that speed. The locomotive which struck the automobile was backing north toward the crossing at a speed of not more than 8 miles an hour, “and probably not more than half of that at the time of the collision.” The Supreme Court of, Ohio asserted that “the record shows conclusively that the engine could not have been more than 50 or 75 feet away at any time after the driver of the automobile had passed the point on the highway 20 feet west of the railroad track.”

In the case at bar, the train which struck appellee’s automobile at the railroad crossing was traveling within city limits at a speed estimated as between 30 and 40 miles per hour. That it was traveling fast is established by the undisputed testimony that the automobile was caught on the front of the engine and was carried in that position about 500 feet before the train was stopped. Moreover, the automobile was destroyed by the collision. Two disinterested witnesses, though very close to the scene of the accident, heard no whistle blow or bell ring. A pile of earth covered by weeds, partly on- the railroad right-of-way, obstructed a traveler’s view so that, according to several witnesses, a person traveling in an automobile would be required to come within 5 or 10 feet of the railroad track before he could obtain a clear view of the track to the west.

The appellee testified positively that he stopped his car about 8 of 10 feet from the track, looked both ways and listened, and neither saw nor heard an approaching train before he started across the intersection in second gear; and that he was in the middle of the track when he discovered the train 3 feet to the west. Obviously the jury believed his testimony, and the able and experienced trial judge, learned in Ohio law, who saw and heard the witnesses, upheld the verdict.

Upon these facts, I cannot join in the opinion that different minds may not reasonably arrive at different conclusions as to whether or not the plaintiff was guilty of contributory negligence which contributed as a proximate cause to bring about his injury. The issue of contributory negligence was, in my view, plainly a question of fact for the jury, to be submitted under appropriate and correct instructions.

I do not construe the statement in the Rohrs case with respect to making looking “effective” is implying absolutism. If the word “effective” be construed in an absolute sense, every motorist who exercises due care in looking, but fails to see an approaching train, would be barred from recovering in any case where his car was struck at a railroad crossing. Surely such could not have been the intent of the Supreme Court of Ohio, because such an interpretation would fly in the face of its many adjudications to the contrary. A railroad company does not have the exclusive right of way at a street crossing. Texas & P. R. Co. v. Cody, 166 U. S., 606, 17 S. Ct. 703, 41 L. Ed., 1132; 44 Am. Jur., Section 493.

In Robinson v. Pennsylvania R. Co., 117 Oh St, 43, 58, 158 N. E., 83, 88, decided after Rohrs case, Judge Allen, now of this' court, writing then for the Supreme Court of Ohio, in upholding a verdict for the plaintiff in an action based upon a collision between a railroad train and an automobile at a grade crossing, said: “While an automobile driver rests under the duty of looking and listening before he crosses a railroad track of whose existence he is aware, it is not as a matter of law his absolute and unqualified duty to stop before he goes upon such railroad track unless his looking or listening discloses the presence of a moving train.”

Almost in the identical language of the Supreme Court of Ohio in the Rohrs case and in the Robinson case, the trial judge in the instant case incorporated into his charge to the jury the pertinent principles declared in the two cases thus: “It was the duty also of plaintiff, as he was about to cross over the railroad tracks, to exercise his senses of sight and hearing to discover whether a train was approaching the crossing and also about to pass pver it and it was his duty to make such observation at such time and place as to be effective for that purpose. On the other hand, while an automobile driver rests under the duty of looking and listening before he crosses a railroad track of whose existence he is aware, as was the plaintiff in this case, it is not a matter of law his absolute and unqualified duty to stop before he goes upon such track, unless his looking or listening disclosed the presence of a moving train.” The district judge charged further: “If you find that defendant has proven by a preponderance of the evidence that plaintiff himself was guilty of negligence directly and proximately contributing to his own injury or injuries in the manner alleged by defendant in its answer then plaintiff cannot recover damages in this case and under such circumstances your verdict should be for the defendant.” The court charged also: “If you find that the injuries of which plaintiff complains were brought about as the result of the sole negligence of the defendant, and that such negligence on the part of the defendant was the.direct and proximate cause of such injury or injuries without any negligence of the plaintiff having contributed directly or proximately thereto, then in such case, your verdict should be for plaintiff herein and ‘it would be necessary for you to assess or determine the damages.” The court had carefully and correctly explained to the jury that proximate cause, in relation to either the plaintiff’s negligence or the defendant’s negligence, is a cause without which the accident would not have happened and which did in the natural course of events and without other efficient and independent cause bring about the injuries of the plaintiff.

In my judgment, the charge was correct, and the court pursued the correct course in submitting to the jury the issue of contributory negligence, instead of pursuing a course of absolutism in taking the case from the jury and deciding that issue of fact against the direct testimony of the plaintiff. It is my view that the district judge, well aware of all the Ohio authorities cited in the majority opinion, including the Rohrs and Patton cases, acted in consonance with these authorities in submitting the issue of contributory negligence to the jury.

In Glasco v. Mendelman, 143 Oh St, 649, 655, 656, 28 O. O., 522, 56 N. E. (2d), 210, 213, decided July 26, 1944, the Supreme Court of Ohio reversed the holding of the Court of Appeals of that state that, as a matter of law, “the negligence of the plaintiff contributed to the proximate cause, and prevented recovery.” The opinion stated: “That court [the Court of Appeals], on appeal on questions of law alone, has authority to determine the question of proximate cause as a matter of law where the evidence is such that reasonable minds can arrive at but one conclusion. However, where the evidence is such that reasonable minds can arrive at different conclusions upon that question then it is one of fact for determination by the jury.”

The language of Judge Allen in Trentman v. Cox, 118 Oh St, 247, 160 N. E., 715, 716, quoting from Huddy on Automobiles (8th Ed.), 611, Section 576, was quoted: “Not only may one cross a street in front of a moving vehicle without his negligence being conclusively established, but it is also held that he need not, as a matter of law, constantly watch the vehicle” Moreover, in the Glasco case, the State Supreme Court said: “In Knapp v. Barrett, supra (216 N. Y., 226, 110 N. E. [428], 429), Judge Cardozo said the law does not even say that because a pedestrian ‘sees a wagon approaching, he must stop till it has passed. He may go forward unless it is close upon him; and whether he is negligent in going forward will be a question for the jury. If he has used his eyes, and has miscalculated the danger, he may still be free from fault.’ That statement is in line with the weight of authority upon this subject and is the established law of Ohio. See Trentman v. Cox, supra, and Smith v. Zone Cabs, supra [135 Oh St, 415, 14 O. O., 316, 21 N. E. (2d), 336]. Under the evidence in the instant case reasonable minds might well have arrived at different conclusions upon the question of proximate cause and therefore it was a'question of fact for the jury.” [Emphasis ours.]

Again, on May 9, 1945, the Supreme Court of Ohio reversed the Court of Appeals, in Wilkeson, Adm’r. v. Erskine & Son, Inc., 145 Oh St, 218, 227, 228, 229, 30 O. O., 448, 61 N. E. (2d), 201, 206, in its holding by a divided court the prejudicial error had been committed by the trial court in overruling the defendant’s motion for a directed verdict. The opinion of the highest Ohio court declared it to be the settled law of the state that a motion for a directed verdict involves an admission of all the facts which the evidence tends to prove, construing such evidence most strongly in favor of the party against whom the motion is made; that where from the evidence reasonable minds may reach different conclusions upon any question of fact the issue is for the jury; and that “the test is not whether the trial judge would set aside a verdict on the weight of the evidence.” The statement last quoted was credited to Hamden Lodge v. Ohio Fuel Gas Co., 127 Oh St, 469, 189 N E., 246. Liberal quotation from 39 O. Jur. 799, Sections 182 and 183, was made, including assertions that the trial judge, in ruling upon a motion for a directed verdict, should consider the evidence in the light most favorable to the party against whom the motion is made, “of which such evidence is susceptible”; and that the trial judge should indulge in every possible consideration in favor of submission of the case to the jury. The Wilkeson case is cited and quoted with approval in Hilleary v. Bromley, 146 Oh St, 212, 221, 222, 32 O. O., 188, 64 N. E. (2d), 823, decided January 23, 1946. Compare Childe v. Street R. Co., 80 Oh Ap, 128, 35 O. O., 467, decided February 17, 1947.

I desire to emphasize the following quotation from the opinion of the Ohio Supreme Court in the Wilkeson case, which expresses a viewpoint to which I have long adhered: “The fact that there was a difference of opinion among the members of the Court of Appeals, all of whom are experienced jurists, suggests at least that reasonable minds can reasonably come to more than one conclusion in respect of the evidence in this case.”

I would add that the practical protection of the constitutional guarantee of trial by jury requires forbearance and restraint upon the part of both trial judges and appellate judges in setting aside the findings of juries upon issues of fact, upon the ground that reasonable minds could not differ upon the questions submitted under correct instructions as to the law. The combined experience, observation and intelligence of jurors — drawn as they are from many activities of life — may better equip them to decide controverted fact issues than would be possible on the part of the most able, intelligent and conscientious judge. At least, the framers of our Constitution thought so in their adoption of the Sixth and Seventh Amendments.

In Tennant, Adm’x. v. Peoria & P. U. R. Co., 321 U. S., 29, 35, 64 S. Ct., 409, 88 L. Ed. 520, the Supreme Court of the United States, in reversing the Court of Appeals for the Seventh Circuit, which by a two to one vote decided one of the cases cited in the majority opinion [Moss v. Pennsylvania R. Co., 146 F. (2d), 673] said: “Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” [321 U. S., 29, 64 S. Ct., 412.] Moreover, in Lavender, Adm’r. v. Kurn, 327 U. S., 645, 653, 66 S. Ct. 740, 744, 90 L. Ed., 916, the Supreme Court recently made this strong pronouncement: “Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle to be the most reasonable inference. Only the dispute by choosing what seems to them when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.”

In Highfill v. Louisville & N. R. Co., 6 Cir., 154 F. (2d), 874, this court applied the doctrine of the two last-cited opinions of the Supreme Court. This doctrine was later applied in Ellis v. Union Pac. R. Co., 329 U. S., 649, 67 S. Ct., 598, 91 L. Ed.-. In Wabash R. Co. v. Walczak, 6 Cir., 49 F. (2d), 763, the argument was rejected that mere failure to discover a train by which the automobile in which the plaintiff was riding was struck constituted proof positive that the occupants of the car failed to exercise the duty of continuing care in going upon a grade crossing in a city. Our court long ago recognized that in an action for damages for personal injuries, 'unless the inference to be draw from the facts is so plain as to make it a legal conclusion that the plaintiff was guilty of contributory negligence, that issue must be left to the jury. See opinion of Judge Sanford, later a member of the Supreme Court of the United States, in Winters v. Baltimore & O. R. Co., 6 Cir., 177 F. 44. See also Chicago & E. R. Co. v. Ponn, 6 Cir., 191 F. 682, 689, 690, and the cases cited therein; Toledo, St. L. & W. R. Co. v. Howe, 6 Cir., 191 F., 776, 785, and the cases there cited. Compare Carolina, C. & O. R. Co. v. Stroup, 6 Cir., 239 F., 75, 78, 79.

More than 50 years ago, the Supreme Court demonstrated how plain must be the showing that a plaintiff was guilty of contributory negligence before that issue could properly be withdrawn from the jury. Northern Pac. R. Co. v. Egeland, 163 U. S., 93, 16 S. Ct., 975, 41 L. Ed., 82. And, as has been shown, its most recent pronouncements are even stronger.

I have written this dissenting opinion at greater length than I should have desired for the reason that it is my firm conviction that the majority opinion constitutes a departure from the decisions of our court in many adjudicated cases in which the issue of what constitutes contributory negligence as a matter of law was reviewed.


author: By PHILLIPS, J.

text:
    YOUNGSTOWN (CITY), Plaintiff-Appellee, v. PONIKWA, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3226.
    Decided 1948.
    I. Freeman and H. J. Fugett, Asst. Law Directors, Youngstown, for plaintiff-appellee.
    C. H. Dyson, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

A jury in the municipal court of the city of Youngstown, Ohio, found defendant guilty of operating a motor vehicle within the corporate limits of that municipality while under the influence of intoxicating liquors in violation of Section 653-1 of the ordinances thereof. Defendant appealed from that judgment to the court of common pleas, which court affirmed the judgment of the municipal court. In turn defendant appeals irom the judgment of the court of common pleas to this court on questions of law, and contends “that the verdict of the jury was given under erroneous” charge requested by defendant and submitted to the jury by the trial judge in writing

As announced in the case of Schonier v. State, ex rel. Bettman, 47 Oh Ap 84 at 89, we are aware that:—

“It is very easy to pick out isolated phrases in a charge and subject the same to criticism; but the whole charge must be considered, and, if from the entire charge it appears that a correct statement of the law was given in such a manner that the jury could not have been misled, no prejudicial error has intervened.”

In view of that pronouncement, and since the charge of the trial judge is reasonably short, we conclude we can dispose of defendant’s seven assignments of error with reference thereto more expeditiously and intelligently by quoting that charge, which reads:—

“Members of the Jury:
“It now becomes my duty as the Judge presiding in this trial to instruct you about the law which is applicable in this case. To begin with, this Defendant was arraigned in open court on the 19th day of Jan. 1948 charged with the offense of operating a motor vehicle in this City, County and State while under the influence of intoxicating liquors. This charge is brought under Section 653-1 of City Ordinances of Youngstown, Ohio, which reads in part as follows:
“ ‘Whoever operates a motor vehicle of any kind upon any public highway or street while in a state of intoxication or under the influence of alcohol, narcotics or opiates upon conviction thereof shall be punished as follows * * *.’
“You will note that I have purposely refrained from reading the penalty prescribed by this statute, the reason being that in the event this Defendant is found guilty by the proper degree of proof, which will be described to you later on in this Charge, the function of passing sentence is purely that of the Court and is no concern of this Jury.
“To this charge the Defendant entered a plea of not guilty and now appears before this Jury with the issues so drawn.
“By this plea of not guilty the Defendant thereby denies that he is guilty of any crime or offense with which he is charged within and by said affidavit, and by this plea of not guilty denies the truth and existence of each and every material fact stated, averred and set forth in said affidavit. By this plea of not guilty there is cast and thrown upon the City the burden of proving each and every material fact necessary to make out this charge to your satisfaction beyond the existence of a reasonable doubt. By this plea of not guilty this Defendant stands here clothed with the legal presumption of innocence which remains with him throughout the trial and which can only be overcome by evidence which convinces the Jury beyond the existence of a reasonable doubt of his guilt. A mere preponderance of the evidence is not sufficient to establish his guilt, nor is it sufficient that you believe it more probable that he is guilty than that he is not guilty. So long as a reasonable doubt of the Defendant’s guilt remains in the minds of the Jury, the Defendant is entitled to the benefit of such doubt and until such reasonable doubt be removed cannot be convicted in this case.
“This leads us to the question of what is meant by a reasonable doubt. By a reasonable doubt is meant an honest uncertainty existing in the mind of a reasonable man after a full and careful consideration of all of the evidence with a desire to ascertain the truth. It does not mean a mere captious or imaginary doubt but an actual doubt remaining in your minds after a consideration of all of the evidence.
“If after a careful examination and consideration of all of the evidence, y.our minds are in that condition that you cannot say that you feel a conviction of the guilt of the Defendant and are not satisfied to a moral certainty from the evidence of the truth of the charge, then a reasonable doubt may be said to exist.
“You will look, then, to all of the evidence, and if that satisfies you beyond a reasonable doubt of the Defendant’s guilt of the offense charged in the affidavit under the instructions which the Court gives you, then you should find him guilty of that charge, but so long as a reasonable doubt of Defendant’s guilt remains, he cannot be convicted of any offense charged or included in the affidavit.
“This leads us further to a consideration of what are the necessary elements for the City to prove by that degree of proof as already explained to you before a conviction can be had. The first element which you as jurors must consider is a matter of jurisdiction, which should not cause you too much trouble. It is necessary that the City prove that the offense charged was committed within the jurisdiction of this Court. In criminal matters this Court has jurisdiction of the entire County of Mahoning.
“The second element for the City to prove by the proper degree of proof is that the Defendant operated and drove his automobile while under the influence of intoxicating liquor. In the consideration of this element it is, of course, essential that the actual driving or operation of the motor vehicle be proven. It is further essential that the City prove that the operation of that automobile was at a time when this Defendant was under the influence of intoxicating liquors. By ‘intoxication’ or ‘under the influence of intoxicating liquor’ is meant a condition resulting from the use of alcoholic or fermented beverages known as intoxicating liquor. There are various degrees of intoxication ranging from a state of exhilaration to one of complete stupefaction. The degree of intoxication contemplated by this Section, is that mental or physical condition of mind of body or both which is produced by the use of intoxicating liquors and results in a person becoming abnormal and being without the possession of his or her normal faculties to such an extent that such person is unable to operate a motor vehicle with the same degree of care and prudence that such person would be able to exercise under the same circumstances if he or she were sober and normal.
“You members of the Jury in your deliberations of the issues joined in this case are the sole judges of the facts. In this regard the Court has no jurisdiction over you. Therefore, the Court desires to state at this time that you should not use the Charge of this Court or any of the rulings of the Court during the course of the trial as indicating in any way the Court’s opinion with respect to the merits of the case. The Court must be and sincerely desires to be impartial in presiding over this trial. So, if during the course of this proceeding it has at any time appeared to you that the Court was indicating in any manner any inference with regard to the facts in this case or that the Court was indicating preference for one side or the other, you must disabuse your minds entirely of such an idea, and you must disregard entirely any such apparent action of the Court and dismiss entirely any such thought from your minds.
“Furthermore, if at any time during the trial the Court has instructed you to disregard any matter or any statement of a witness, you will leave such matters or statements as completely out of your consideration as though such incidents had never occurred, and in no case where an objection to a question has been sustained are you to draw any inference from such a question the answer to which has not been permitted by the Court to be given.
“You are not only the sole judges oí the facts but you are also the sole judges as to the weight of the testimony and of the credibility of the witnesses who have appeared upon the witness stand. In the judging of the credibility of a witness you will keep in mind the conduct of the witness upon the stand, his willingness to answer questions for the party by whom he is called and his reluctance, if any, to answer questions on cross examination, or his willingness to answer questions for both sides regardless of the side on which he is called to testify and in whose behalf the question is asked. And keep his conduct upon the witness stand well in mind. Consider the intelligence or lack of intelligence of the witnesses, their manner of testifying, their candor or lack of candor upon the witness stand, their means or lack of means of knowledge concerning the facts to which they have testified, their opportunity or lack of opportunity for observation of such facts, the reasonableness or unreasonableness, the probability or improbability of what they say their interest or lack of interest in the outcome of this prosecution may be and, in general, all the circumstances bearing upon their testimony appearing the case. Take all of these things into consideration, and then give to each witness’s testimony such weight and such credence as you in your judgment believe the testimony of the witness is entitled to receive at your hands.
“The Court wishes to instruct you that neither the preliminary statements of the Prosecutor and counsel for Defendant nor the final arguments of the Prosecutor and counsel for Defendant are to be considered by you as evidence.
“You will have in your jury room with you the affidavit in this case. It goes with you for the sole purpose of assisting you in analyzing the facts and testimony in this case. But I charge you that you must not consider any statement made by counsel either in the opening statements or concluding argument or any statement contained in this affidavit as being evidence. The only evidence that you are to consider in this case is the evidence that came to you from the witnesses as they appeared in open court on this witness stand and the exhibits that have been introduced and admitted as evidence during the course of this trial. And as I have stated, there is included in that evidence as part of the exhibits which you will have with you in your jury room.
“You will have appropriate forms of verdict to meet the conclusion that may be reached under the evidence and the law. One form provides for a finding of guilty, and the other form provides for a finding of not guilty. You will select the form of verdict that expresses the conclusion to which you come, and all of you must sign it. It requires a unanimous agreement to return a verdict in a criminal case. The first thing you will do is select your foreman and then proceed with your deliberations, and when you reach a conclusion, select the form of verdict that expresses that conclusion, and all of you sign it.”

The written charge which the trial judge submitted to the jury was enclosed in a cover upon which there was typewritten:—

“Dictated by:
The Hon. Robert B. Nevin,
Judge of the Municipal court,
Youngstown, Ohio.
Jury Charge
Operating A Motor Vehicle While Under The Influence Of Intoxicating Liquor
City of Youngstown vs Stanley Ponikwa
Docket No. 437.”

Counsel for defendant contends that the foregoing “carried the impression that the defendant was already found guilty and that this was the instruction of the court that he was guilty”, and influenced the jury to his prejudice. We do not believe so.

Counsel for defendant contends that by charging the jury “by this plea of not guilty there is cast and thrown upon the city the burden of proving each and every material fact necessary to making out this charge to your satisfaction beyond the existence of a reasonable doubt” (sic), the trial judge did not conform with the provisions of §13442-3 GC, which reads:—

“A defendant in a criminal action is presumed to be innocent until he is proved guilty of the crime charged, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he shall be acquitted. But the effect of this presumption of innocence is only to place upon the state the burden of proving him guilty beyond reasonable doubt. Reasonable doubt is defined as follows: ‘It is not a mere possible doubt, because everything relating to human affairs or depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.’ In charging a jury the court shall state the meaning of presumption of innocence, and read the foregoing definition of reasonable doubt.”

Defense counsel claims that the words “to your satisfaction” changes the meaning of reasonable doubt as set forth in the statute to one of mere satisfaction of reasonable doubt instead of an abiding conviction to a moral certainty of the truth”; and the use of the words “and which can only be overcome by evidence which convinces the jury beyond the existence of reasonable doubt of guilt” conflicts with the language of the quoted section of the General Code, and “changes the degree of proof from reasonable doubt to a -moral certainty and takes away from the reasonable doubt the meaning of the statute and thereby nullifies the statutory meaning”; and that by stating that “the defendant is entitled to the benefit of such doubt and unless such reasonable doubt be removed cannot be convicted in this case” he did not truly state the law as the “defendant is not entitled to any benefit and the burden is clearly upon the state to prove beyond the question of reasonable doubt that he is guilty as charged”.

In his third and fourth assignments of error counsel for defendant claims that the trial judge erred prejudicially to defendant by failing to read the statutory definition of reasonable doubt as defined in §13442-3 GC, and made mandatory therein, and to charge “the jury on reasonable doubt substantially as required in that section” as held mandatory in the case of Beck v. State, 129 Oh St, 582, and “in his attempt to define reasonable doubt”; and claims that the trial judge submitted several definitions of reasonable doubt, none of which comply with §13442-3 GC, to the jury, and that it is impossible to determine which of such definitions the jury followed, and that this “court can not assume that the jury selected the one statement which was substantially correct and rejected the other statements which were erroneous.”

Counsel for defendant does not complain too bitterly about the trial judge charging the jury with reference to the jurisdiction of the trial court, but does contend that the words with reference thereto “which should not cause you too much trouble”, indicated how the trial judge felt, and accordingly were highly prejudicial; and claims that the repetition of the words “it is further essential that the city prove that the operation of that automobile was at a time when the defendant was under the influence of intoxicating liquors” assumed that the defendant was intoxicated, which of course was a matter to be proven.

In his sixth assignment of error counsel for defendant contends that “the court below was in error by repeating his charge on the affidavit and the arguments and statements of counsel and thereby elaborated on the same so as to prejudice the defendant”.

Finally defendant’s counsel contends that the trial judge erred to defendant’s prejudice by charging the jury “all of you sign it” (the verdict), when “in fact only the foreman should sign the verdict”, which instruction amounted to the trial judge directing a verdict in favor of the City of Youngstown.

While it was unfortunate that the information contained on the cover clothing the charge was not made so clear that there could be no doubt concerning it, yet standing alone we cannot conclude that defendant was prejudiced thereby.

In the case of Beck v. State of Ohio, 129 Oh St, 582, the supreme court held that:—

“In charging a jury in a criminal case, failure to read the definition of reasonable doubt as set forth in §13442-3 GC, is not reversible error where the court charges the jury on reasonable doubt substantially in accordance with that section.”

We have studied the charge of the trial judge carefully and under the decision in the case of Beck v. State of Ohio, supra, he did not err as charged in failing to read the definition of reasonable doubt as set forth in §13442-3 GC, and in our opinion he committed no error prejudicial to defendant for the reason that he charged the jury on the question of reasonable doubt substantially in accordance with that section.

The words “which should not cause you too much trouble” added nothing to the instructions the trial judge was trying to give to the jury, and were wholly unnecessary, but in our opinion the use thereof did not constitute prejudicial and reversible error.

While it was unfortunate that the trial judge found it necessary to repeat as set forth supra, yet we do not believe that under the situation existing in this case defendant was prejudiced thereby.

The charge of the court with reference to all of the members of the jury signing the verdict was technically incorrect, but in our opinion was not prejudicial.

Reading this charge in its entirety and construing it so we reach the conclusion that the trial judge committed no error therein in the respects urged prejudicial to the defendant, and accordingly the judgments of the Municipal Court and the Court of Common Pleas must be and hereby are affirmed.

CARTER, PJ, NICHOLS, J, concur in judgment.


author: By MILLER, PJ.

text:
    MAHANEY, Plaintiff-Appellee, v. PERRY AUTO EXCHANGE, INC., Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2041.
    Decided April 11, 1949.
    Vradelis & McCray, Dayton, for plaintiff-appellee.
    Shaman, Winer & Shulman, Dayton, for defendant-appellant.
   OPINION

By MILLER, PJ.

This is a law appeal from the Court of Common Pleas of Montgomery County, Ohio. The action was one to rescind the contract of sale of a 1934 used Nash Lafayette automobile and to recover the purchase price of $492.50. The action was based upon two grounds, to wit:

(1) That a conditional sale of the automobile was entered into, the condition being that the car be “in good operating condition;” that the condition of the conditional sale was never fulfilled, hence no sale was consummated and plaintiff is entitled to his money back.

(2) That if a sale was consummated, the sale contained a warranty of the seller that the car was “in good operating condition;” that the warranty was broken; and the buyer elected to rescind sale and recover his purchase money.

The answer admits the sale as alleged but denies each and every other allegation contained in the statement of claim. The answer further alleges that the automobile was sold “as is” and without any warranties or conditions whatsoever. During the course of the trial however the defendant admitted that the car was sold under the standard O. P. A. Dealer’s Warranty, which provides:

“The used car described below, including any equipment named in Appendix D of Maximum Price Regulation 540, is hereby warranted to be in good operating condition under normal use and service for a period of 30 days after delivery or 1,000 miles, whichever may first occur.
We, the undersigned, agree, if said car is delivered during the above period to our place of business, to make with reasonable promptness any repairs or replacements which may be necessary, to its good operating condition in accordance with normal use and service, at a cost to the purchaser named below of not more than 50% of the normal charge for such repairs or replacements. Our normal charge is not in excess of O. P. A. Ceilings.
This warranty does not extend to tires, tubes, paint, glass, upholstery, or to any repairs or replacements made necessary by misuse, negligence or accident.”

The trial court found, and we find that the record supports this finding.

“That prior to the sale of said Nash LaFayette used ear it was represented and warranted, by the defendant to the plaintiff, said car was in perfect condition, A-1 condition and first-class condition; that in the truth and fact said 1934 Nash LaFayette used car was not in perfect, A-1 or first-class condition but same had a bearing knock, a growl in the differential and had no brakes; that such representations and warranties made by the defendant to the plaintiff were false; that said plaintiff had no opportunity to investigate the truth or falsehood of said material misrepresentations and false warranties; that said plaintiff was justified in relying upon said representations and warranties; and that by reason of such reliance upon said representations and warranties said sale was consummated. The Court further finds that by reason of said material misrepresentations and false warranties, the plaintiff is entitled to rescind the sale. The Court further finds that the plaintiff tendered back to the defendant on July 24, 1946 and on July 25, 1946 said 1934 Nash LaFayette used car and ever since said date has held said used car at the order of the defendant.”

The court thereupon found for the plaintiff, rescinded the sale and entered judgment for the full amount of the purchase price and ordered the car returned to the defendant. The cause was then appealed to the Court of Common Pleas which affirmed the judgment and it is from this order that this appeal is directed.

The question presented is whether under the facts as found by the trial court there was a breach of the O. P. A. Warranty. In the case of Swisher v. Miami Motors, et al, 81 Oh Ap 97, 76 N. E. (2d) 682 this court held that such a warranty enjoined upon the dealer an obligation to turn over to the buyer an automobile in good operating condition at the date of sale. This obligation was not met by the defendant. Therefore there was a breach of warranty and under §8449 GC the buyer may elect to rescind the contract.

We find that there was reasonable grounds for the appeal and the plaintiff’s motion for damages and attorney fees Will be overruled. We find no error in the record and the judgment is affirmed.

HORNBECK and WISEMAN, JJ, concur.