Opinion · Ohlaw Ohio
MCBRIDE v. T.T. RD. CO., 166 Ohio St. 129 (1957)
140 N.E.2d 319
- Type
- Opinion
- Court
- Ohlaw Ohio
- Jurisdiction
- Ohlaw
- Date
- 1957-02-06
- Topic
- general
MCBRIDE v. T.T. RD. CO., 166 Ohio St. 129 (1957) 140 N.E.2d 319 MCBRIDE, APPELLEE AND CROSS-APPELLANT v. TOLEDO TERMINAL RD.
Citator
UpLaw has not yet analyzed MCBRIDE v. T.T. RD. CO., 166 Ohio St. 129 (1957). The absence of a flag is not a finding that it is good law.
MCBRIDE v. T.T. RD. CO.,166 Ohio St. 129(1957)
140 N.E.2d 319
MCBRIDE, APPELLEE AND CROSS-APPELLANT v. TOLEDO TERMINAL RD. CO., APPELLANT
AND CROSS-APPELLEE.
No. 34783
Supreme Court of Ohio.
Decided February 6, 1957.
In the Court of Common Pleas the plaintiff, a freight conductor, instituted an action under favor of the Federal Employers' Liability Act to recover damages for personal injuries suffered on January 31, 1951, when he slipped while descending the icy rungs of a ladder on a boxcar in the Rossford, Ohio, yard of the defendant railroad company.
The jury returned a verdict for the plaintiff. However, the trial court sustained the defendant's motion for a judgmentnonobstante veredicto.Also, the defendant's motion for a new trial was sustained conditionally in the event there should be a subsequent reversal of the judgmentnon obstante veredicto.
The plaintiff appealed to the Court of Appeals on questions of law from the judgmentnon obstante veredictoand also from the sustaining of the motion for a new trial. For lack of a final order, that court dismissed the appeal from the sustaining of the motion for a new trial. With one judge dissenting, the judgmentnon obstante veredictowas reversed and the cause was remanded to the Court of Common Pleas for a retrial.
The cause is in this court by reason of the allowance of the motions to certify filed by both the plaintiff and the defendant.
Nor was the trial court in error in sustaining the defendant's motion for a new trial conditionally in the event there should be a subsequent reversal of the judgmentnon obstante veredicto.That court was simply following the plain provisions of the next-quoted parts of the pertinent statutes.
Section2323.18, Revised Code. "When a judgment has been entered upon a verdict, and thereafter a judgment is entered contrary to the verdict under the provisions of this section, the judgment previously entered upon the verdict shall be thereby vacated and set aside."
Section2323.181, Revised Code. "If such motion for judgment is sustained and judgment entered thereon, then any motion for a new trial filed by any party shall, nevertheless, be considered and decided by the court, and if such motion for new trial is also sustained, the journal entry shall provide that a new trial shall be had only in the event of a reversal of the judgment on the motion provided for in Section2323.18of the Revised Code."
The trial court obviously proceeded in accordance therewith.
The defendant's appeal involves no disputed rule of law. The sole question is whether this record discloses evidence requiring submission of this case to the jury.
The trial court held that there was no proof either of proximate causation or of negligence on the part of the defendant.
In the Court of Appeals the dissenting judge agreed with the trial court that there was no proof of proximate causation. This court concurs in that conclusion.
In response to three submitted interrogatories, the jury found the defendant negligent in but one respect, namely, insufficient lighting to afford a safe place to work.Mastersv.Page 131New York Central Rd. Co.,147 Ohio St. 293,70 N.E.2d 898; 65 Corpus Juris Secundum, 1265, Section 304.
Reduced to its lowest terms, the precise question is whether the record discloses evidence from which reasonable minds may reach different conclusions as to proximate causation between the plaintiff's injuries and the defendant's negligence in failing to provide adequate lighting.Hamden Lodgev.Ohio Fuel Gas Co.,127 Ohio St. 469,189 N.E. 246;Bevanv.New York, Chicago St.Louis Rd. Co.,132 Ohio St. 245,6 N.E.2d 982.
The plaintiff testified in part as follows:
"Q. Then while you were climbing down, you were not looking at the rungs of the ladder? A. You can't look down.
"Q. You weren't, were you? A. No.
"Q. And those rungs on all cars are the same distance apart anyhow, aren't they? A. I imagine they are."
The dissenting judge of the Court of Appeals makes the following pertinent comment in his opinion:
"It is to be noted that the area was not lighted, but plaintiff was able to see that the last car — three car lengths away — was not moving. He carried an electric switching lantern, which was hooked over his left arm. From four years' experience, he would be familiar with ladders and the spacing between the rungs. The evening of his injury, on a number of occasions, plaintiff had climbed up and down similar ladders, without slipping. He wore four-buckle arctics with cleats for better footing. He imagined there was snow upon the soles. He had observed snow on the rungs of the ladders.
"It is common knowledge that one experienced in the use of ladders does not look his way up or down but feels his way up or down. Plaintiff testified that he could not see the rungs below. He did not have to see the rungs. He knew where the particular rung was. Furthermore, he did not miss the rung, but made contact with it and his foot slipped. It is inconceivable that the absence of sufficient artificial lighting would even be a factor causing his foot to slip.
"* * * Plaintiff has not only failed to establish a causal connection between the failure of the defendant to provide adequate lighting, he has also failed to exclude the more reasonable inference that his injury was due to the slipping of his shoePage 132from the rung of the ladder."
Consistent with the foregoing reasoning, the Court of Common Pleas was not in error in sustaining the defendant's motion for a judgmentnon obstante veredicto.Hence, the judgment of the Court of Appeals must be reversed and that of the trial court affirmed.Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, BELL, MATTHIAS and HERBERT, JJ., concur.