REPORTS

OF

CASES ARGUED AND DETERMINED

IN THE

CIRCUIT COURTS OF OHIO

STREET RAILWAYS.

[Delaware (5th) Court of Appeals, May Term, 1915.]

Houck, Shields and Powell, JJ.

ELI M. WEST, RECEIVER v. WALTER H. GILLETTE, ADMR.

1. Presumption of Control of Street Car at Street Intersection on Slippery Track and Down Grade.

2.

One approaching street car tracks at a street intersection, driv ing a horse and carriage, seeing a street car at the summit of a steep grade, more than 300 feet distant, and having been first at the crossing, might properly rely upon the presumption that the car was traveling at proper speed when running down grade and under control; or if such driver were negligent in driving upon such crossing at the time and under the circumstances stated, the motorman, plainly seeing the horse and vehicle at the top of the slope and seeing the peril of the driver and his failure to heed the warnings sounded, had time, opportunity to avoid a collision by checking the speed or stopping the car and neglected to do so, the street car company would be liable for injuries so sustained, and the fact that the tracks were slippery would not excuse but demands increased vigilance, all of which being facts for the jury, a judgment for plaintiff will not be reversed.

Last Chance Doctrine Applies to Collisions between Street Cars and Vehicles at Street Intersections.

The "last chance" doctrine applies in an action for injuries resulting from a collision between a street car and horse and vehicle at a street crossing, where plaintiff avers that when decedent reached the tracks the street car was more than 300 feet away and that the motorman had ample time after seeing the peril of decedent regardless of contributory negligence of the . C. C. Vol. 36.

Delaware County Appeals.

driver, to check the fast speed of the car thereby to have avoided the collision; hence an instruction given the jury upon a request by the jury for repetition thereof; that "the car must be in the power of the motorman to such an extent as that when he saw the horse and buggy on the track he would stop his car within a reasonable time and distance so as to avoid, if possible, the collision, correctly states the law, especially since there was uncontradicted proof that the vehicle and horse were in plain view of the motorman from the summit down.

3. Motion to Direct Verdict Refused if Evidence Tends to Prove Material Allegations of Pleadings.

In a negligence case, on motion to direct a verdict for nonsuit, there being evidence tending to prove the material allegations charged in the petition, the case should be submitted to the jury.

ERROR.

Harry F. West and Hough & Jones, for plaintiff in error. Marriott, Freshwater & Wickham and George C. Snyder, for defendant in error.

SHIELDS, J.

This was an action brought in the court of common pleas of Delaware county, Ohio, by Albert N. Gillette's administrator to recover damages against Eli M. West, as receiver of the Columbus, Delaware & Marion Railway Company, for the death of the said Albert N. Gillette, alleged to have been caused by the negligence of the said railway company while the said Albert N. Gillette was on January 11, 1913, driving his horse attached to a buggy upon and over the crossing of Olentangy avenue and Sandusky street within the corporate limits of the city of Delaware, Ohio.

The negligence charged in the plaintiff's petition filed in the court below was, in substance, that the motorman in charge of one of the interurban cars of said railway company, in operating the same between the said city of Delaware and the city of Columbus, Ohio, in the afternoon of said day, when approaching said crossing at down grade from the summit of an elevation some 300 feet distant therefrom, and when in full view of the said Albert N. Gillette while driving on said Olentangy avenue up to and upon said crossing and in an effort to

West v. Gillette.

eross the same, carelessly, negligently and unlawfully run said. car at a high, reckless and dangerous rate of speed in utter disregard of the rights of the said Albert N. Gillette upon said crossing, without giving warning by whistle or otherwise of the approach of said car to said crossing, which said car struck the horse and carriage of the said Albert N. Gillette, with great force and violence when upon said crossing, throwing him out of said carriage upon the ground, causing concussion of the brain and great internal injuries, from the effects of which he died. Other averments of negligence in connection with the killing of the said Albert N. Gillette at said time and place. were contained in said petition, which appear in the discussion of the facts in this opinion. Damages in the sum of $10,000 were prayed for.

In his answer to said petition said receiver admits that the said Albert N. Gillette collided with one of the cars operated by the defendant as receiver, at the time and place stated, and that he died shortly thereafter, but denies all the other allegations of said petition. He further avers that if upon the trial it should appear that the defendant was guilty of negligence as charged in said petition, that the decedent was guilty of negligence directly contributing to his injury and death, in that he started to cross the tracks of the defendant at the point of the collision without first exercising care to discover the approach of the car of the defendant.

For reply to the second defense in said answer the plaintiff denied all the allegations therein charging negligence directly contributing to the injury of the said decedent.

Trial was had upon the issues thus made resulting in a verdict and judgment for the plaintiff. A petition in error with a bill of exceptions containing the evidence taken upon the trial, including the charge of the trial court to the jury, was filed in this court for a reversal of said judgment.

Numerous assignments of error are contained in said petition in error, but we will consider more particularly such as were urged upon the attention of this court and upon which the plaintiff in error relied.