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West v. Gillette.

or slacken the speed of the car until almost at the crossing, when by so doing the collision which ensued might have been - avoided.

"2. It is not negligence in the driver of a wagon to attempt to drive across a street car track ahead of an approaching electric car, when the car is so far away that by the exercise of reasonable care it might be stopped before reaching the place of crossing."

In Harris v. Railway, decided by the court of appeals for Cuyahoga county, and reported in 36 O. C. C. 17(21 N. S. 209), it is held that:

"A street car company has only equal rights with the driver of a horse, or a pedestrian, at a street crossing, and therefore it is the duty of the motorman as he approaches the street crossing to have his car under control and to keep a constant lookout, not only ahead, but also to the right and left, so as to discover persons upon the track or approaching it without noticing or heeding the approaching car, so that he may allow them to pass over in safety.".

In Greve v. Traction Co. 36 O. C. C. 26(21 N. S. 331), the court of appeals for Hamilton county held that:

"In an action by a driver who was thrown from his seat and injured in a collision between a traction car and his vehicle, it is error to direct a verdict for the traction company where the evidence tends to show that the vehicle could have been clearly seen by the motorman, crossing from one side of the street to the other, in time for him to have avoided the accident by stopping or checking the speed of the car."

In Lake Shore & M. S. Ry. v. Schade, 8 Circ. Dec. 316 (15 R. 424), it is held that:

"If the decedent in this case was negligent in going upon the track in the manner and at the time he did, yet if the engineer in charge of the train ought, by the exercise of ordinary care, to have seen the decedent in his perilous position, and could, by the exercise of ordinary care, have stopped or checked the speed of the train so as to avoid a collision, and failed to do

Delaware County Appeals.

so, it was negligence for which the company is liable, notwithstanding the negligence of the decedent in going upon the track.

"If the decedent was negligent in going upon the track as he did, yet if after such negligence the persons in charge of the train, by the exercise of ordinary care, could have seen the decedent in his dangerous position and stopped or checked the speed of the train and avoided the injury, and they failed to do so, they were guilty of negligence, and such negligence is the proximate cause of the injury, and the railroad company is liable."

The same rule was also followed by the circuit court in this district in the case of Mansfield Ry. L. & P. Co. v. Kiner, 35 O. C. C. 175 (17 N. S. 175), which was affirmed by the Supreme court.

196:

And in Steubenville & W. Trac. Co. v. Brandon, supra, p.

"It is not negligence in the driver of a vehicle to attempt to cross a street car track ahead of an approaching car so far away that by the exercise of reasonable vigilance on the part of the motorman it might be stopped or checked before reaching the crossing."

It would seem that the foregoing adjudications ought to be decisive of the rights of the public and street car companies at street crossings, but it is contended that the evidence shows that the death of the said Albert N. Gillette was caused by his own negligence-that his negligence contributed to his injuries and consequent death. As already stated, when about to enter upon said crossing he may have relied on the presumption of said car being at such distance, and under control of the motorman, especially when running down grade, as that he could safely pass over it, or, having been first at said crossing and said car being some 300 feet distant and presumably traveling at such speed as that the motorman would not be unmindful of the rights of the public at said crossing, he attempted to cross, or he may even have been guilty of negligence in driving upon said crossing, but if the motorman after having seen the horse and carriage at the place and in the condition stated by him,

West v. Gillette.

and if after having seen the peril of the decedent, if he did, and he then had time and opportunity to avoid a collision between said car and said horse and carriage by checking or even stopping said car, and he neglected to do so, would not such neglect be actionable negligence and be regarded as the proximate cause of the said Albert N. Gillette's death? If guilty of such neglect, we think a liability would follow from the rule laid down in Steubenville & W. Trac. Co. v. Brandon, supra, which appears to have been followed by the trial court in its instructions to the jury. It was urged on the part of the plaintiff in error that it was impossible for the motorman to avoid said collision because of the close approach of said car to said crossing and because of the slippery condition of the surface of the tracks of said railway after the apparent halting of said horse and after the motorman released the air of said car.

The inquiry naturally arises that if the tracks were slippery, would not such fact require increased vigilance on the part of the motorman to see to it that the car be kept under safe control? Such inquiry would seem pertinent when it is considered that said car was running down grade according to the testimony of engineer Core, just prior to reaching said crossing. In commenting upon the necessity of a motorman keeping a car under control when descending a grade, 2 Thompson, Negligence Sec. 1395, says:

"Upon the question what rate of speed is to be deemed unreasonable or dangerous, no exact definition can be made; but the obvious conclusion of reason is that a rate of speed which prevents the motorman from maintaining control of his car so as to stop it within a reasonable distance upon an appearance of danger to others, falls within this category, and, on the other hand, that a rate of speed which, although greater than usual, does not prevent the motorman from keeping his car well in hand, and does not endanger persons using the street with reasonable care for their own safety, is not negligent or blameworthy. The true view is that the railway company must not adopt such a rate of speed as will prevent its motorman from keeping control of the car, especially upon a down grade, and

Delaware County Appeals.

if a car can not otherwise be kept under control, the sanding of the tracks may be regarded as a reasonable means to be adopted for that purpose, the failure to resort to which may be negligence."

But as we view it, this was a question of fact, including the conduct of the motorman in respect to the speed at which he was operating said car between the summit of said elevation and said crossing as tending to show whether or not he was exercising reasonable care in the management of said car, and including also the circumstances under which said decedent drove upon said crossing for the purpose of passing over the same, all of which were questions of fact as bearing upon the alleged negligence of the defendant, or contributory negligence of the decedent, which were to be submitted to and determined by the jury under proper instructions. Gibbs v. Girard, supra. Upon a review of this record we are of the opinion that said verdict is not clearly against the weight of the evidence, nor is the same unsupported by evidence sufficient to warrant said verdict.

It was urged that the court below erred in its instructions upon the law to the jury, and upon a request made for further instructions that said court further erred in repeating such erroneous instruction to the jury. It appears that after said court had instructed said jury and after they had retired for deliberation they requested further instructions by said court, as appears by the following on page 115 of the record:

"Thereupon at 10 A. M. the jury retired to their room for deliberation, and at 1:30 P. M. the jury returned into court and asked for further instructions.

By the court: Gentlemen of the jury, the bailiff has instructed the court that the jurors have requested the court to give them further instructions on the law of this case. Is that correct, Mr. Foreman? Mr. Foreman (Mr. Willis): The jury merely wish to ask the court to read the part of the charge referring to a similar case where negligence may be found on both sides. It was not understood by all of the jurors, whether deficient ears or memory we don't know.

By the Court: I will read it to you, gentlemen, having it

West v. Gillette.

in pencil form before me, that part of the charge which has been requested by your foreman:

"In other words gentlemen of the jury, the decedent, Albert N. Gillette, may have been guilty of negligence in driving upon this track as he did, yet such negligence will not defeat the right of the plaintiff to recover, if the motorman saw the danger in which he was placed in time to have avoided colliding with him by the exercise of reasonable care and by the use of all of the means at his command, and negligently failed to exercise such reasonable care. That is, if you find that there was negligence upon the part of the railway company, and negligence upon the part of Gillette, in driving upon this track in front of an approaching car, then you will proceed and examine the conduct of the motorman after he had discovered, or by the exercise of ordinary care ought to have discovered, the danger in which the said Albert N. Gillette was at the time. As we have said, it was the duty of the motorman, to have his car under control; that is, the car must be in the power of the motorman to such an extent as that when he saw this horse and buggy on the track, or when by ordinary care in his duty of looking for vehicles he ought to have seen this horse and buggy on the track, he could stop his car within a reasonable time and distance so as to avoid, if possible, the collision.'

Do you desire the court to read any further?

Mr. Foreman: I guess that is sufficient, as far as I am concerned.

Court: You may retire."

The foregoing instruction is claimed to be not only erroneous but prejudically erroneous for which the judgment below should be reversed. It is claimed by the plaintiff in error that the trial court in giving said instruction sought to introduce and apply the rule of liability under what is known as the "last chance" doctrine when the allegations of the petition of the plaintiff below do not warrant the application of such rule, and that the facts of the case are such as to defeat the right of said plaintiff to recover. What, then, is understood to be the

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