Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Grambo

Citations

• 103 Ohio St. (N.S.) 471

Syllabus

<p>Negligence — Exercise of care — Children — Contributory negligence — Defense available against whom — Right or amount of recovery affected, how — Constitutional law — Municipal speed ordinance■ — ■ Prestimption of validity — Burden to prove unreasonable— Pleading — Invalidity of speed ordinance.</p> <p>1. Children are not chargeable with the same care as persons of mature years. Although children are required to exercise ordinary care to avoid the injuries of which they complain, such care, as applied to them, is that degree of care which children of the same age, education and experience, of ordinary care and prudence, are accustomed to exercise under similar circumstances.</p> <p>2. In a negligence action for the death of a boy ten years of age, the defense of contributory negligence is available against the father and mother as beneficiaries, and is a question for the jury, under proper instructions. In case the issue is resolved against such beneficiaries, the right of recovery is not affected, but only the amount of recovery, when there are other .beneficiaries not charged with negligence.</p> <p>3. An ordinance regulating the speed of trains through a municipality, enacted under the exercise of police power, which conforms to the limitations prescribed by the legislature, is presumptively reasonable and valid, and not in conflict with the state or federal constitutions. But the presumption may be rebutted, and in order to overcome such presumption a railway company must affirmatively show its unreasonableness.</p> <p>4. Where a city speed ordinance is pleaded as an element of negligence charged in a personal injury case, and the defendant by way of defense admits the existence of the ordinance, but denies its validity, setting out facts which if true would tend to show the ordinance to be unreasonable in its application to the facts of the case, the action of the court in sustaining a motion to strike out such matters is error.</p>