Cincinnati, H. & D. Ry. v. Levy

Citations

• 18 Ohio C.C. Dec. 23

Syllabus

<p>CROSSINGS — NEGLIGENCE.</p> <p>Jelke, Swing and Giffen, JJ.</p> <p>1. Erroneous Charge as to Looking and Listening at Crossing.</p> <p>A traveler is never wholly absolved from using his faculties to avoid danger, and in an action growing out of an accident at a grade crossing, a charge to the jury is erroneous which makes the railroad com-' pany liable on account of the negligence of the watchman in failing to signal danger, independent of the fact that the deceased and her husband, who was riding with her, depended on the watchman more than on their own faculties to discover whether a train tfas coming.</p> <p>2. Question of Negligence of Decedent in Regard to Looking and Listening is for Jury.</p> <p>In such a case the extent to which the decedent and her husband used their senses to discover whether a train was approaching, or the degree of negligence, if any, of which they were guilty, are questions for the jury.</p> <p>3. Burden of Proof on Plaintiff where His Testimony Raises Presumption of Contributory Negligence.</p> <p>While it is true the burden of proving contributory negligence is on the defendant, an exception arises to the rule where the plaintiff’s own testimony raises a presumption of contributory negligence.</p> <p>[Syllabus by the court.]</p>