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Delaware County Appeals.

doctrine of the "last chance"? In 2 Thompson, Negligence Sec. 1629, we find it defined as follows:

"Although a person goes upon a track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him, they are bound to do so. And, according to the better view with reference to injuries to travelers at highway crossings, as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no legal right to be, the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to, danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them."

This definition appears to have been adopted in Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844].

Looking at the averments of the petition of the plaintiff below we find that after averring that said decedent approached said tracks to cross the same, and while in the exercise of due care, said car approached said crossing at a high and dangerous rate of speed, it is averred that:

"When the said decedent started across the track of the defendant's railroad, the motorman in charge of the said car could see the decedent starting across or upon the track with his said horse and buggy more than 300 feet away, and that said motorman knew that at the speed he was running the car, it would strike said horse and buggy before it could cross said track; but plaintiff avers that the decedent did not know the speed of the car and could not learn its speed from his position, and avers that decedent reached the track when the car was at least 300 feet away, and had a right to cross said track, and that the agents, servants and employes of the defendant had ample time after seeing as they did the decedent crossing the track, to check the speed of the car and stop it and thereby have prevented the collision, and the plaintiff says that the agents, servants

West v. Gillette.

and employes of the defendant in charge of said car, negligently, recklessly and wilfully approached said crossing at a high rate of speed and ran against the horse and buggy of said decedent with great force and violence and thereby hurled him from the buggy to the ground."

These averments, in our judgment, brought the case within the rule stated and warranted the trial court in submitting said case to the jury under instructions embodying said rule of law. In giving said instructions the trial court appears to have followed the instructions in the case of Cincinnati Trac. Co. v. Jennings, 19 Dec. 338 (7 N. S. 462), affirmed, no op., Cincinnati Trac. Co. v. Jennings, 79 Ohio St. 435, wherein it is held that:

"It is not error to charge that where the jury have found that both the plaintiff (driver of a cab) and the motorman of the car which collided with the cab were negligent, they may then take into consideration whether the motorman had his car under control to such an extent that he could have avoided the accident after he saw, or by the exercise of ordinary care could have seen, the vehicle on the track.

"Nor is it error to charge that 'it is not negligence in the driver of a vehicle to attempt to cross a street car track ahead of an approaching car, when the car is so far away that by the exercise of reasonable care it might have been stopped before reaching the place of the crossing,' where the circumstances of the case render such a charge appropriate."

We are not unmindful of the contention made by the plaintiff in error as to the finding of the court on the rehearing of said case, but the Supreme Court held that the instruction given. to the jury on the alleged negligence of the traction company and that of the decedent was a correct statement of the law.

Upon an examination of the facts in the case of Drown v. Traction Co. supra, we find the facts stated in that case to be entirely different from the facts stated in the case at bar. Here it is admitted that the motorman plainly saw said horse and carriage at all times from the time said car reached the top of said elevation to the time it descended said elevation and

Delaware County Appeals.

reached said crossing, and likewise saw, or by the exercise of ordinary care could have seen, the peril of said decedent in said carriage, and neglecting and disregarding the rights of said decedent when upon said crossing in said carriage, carelessly and recklessly ran said car upon and against said horse and carriage throwing said decedent out of said carriage and hurling his body some thirty feet and more distant, resulting in his death, while the former case involved a charge of negligence by the traction company for a violation of a city ordinance in failing to give warning of the approach of one of its cars on its tracks to one driving on such tracks in a street going in the same direction as said car. It was not in any sense a street crossing case and the holding made was made with reference to the particular facts in said case. In the matter of the elements of negligence laid as the bases of said actions, we are of the opinion that the cases are essentially different, and we are further of the opinion that the instruction given by the trial court to the jury was proper, that it contained a correct statement of the law as applied to the facts in the case, and that it fairly and impartially presented said case under the issues to the jury.

We have examined the other specifications of error in said petition in error and find no such error in the record as justifies a reversal of the judgment of the court below.

Upon an examination of the entire record, notwithstanding the errors complained of, we are unanimously of the opinion that the case is one in which substantial justice has been done between the parties hereto, that no substantial right of the plaintiff in error has been prejudically affected by the judgment herein and that said judgment ought to be and the same is affirmed, at the costs of the plaintiff in error. Said case will be remanded for execution.

Houck and Powell, JJ., concur.

Harris v. Railway L. & P. Co.

CHARGE TO JURY-STREET RAILWAYS.

[Richland (5th) Court of Appeals, 1915.]

Shields, Powell and Grant, JJ.

(Grant, J., of the eighth district sitting in place of Judge Voorhees.)

MARY HARRIS V. MANSFIELD RY. L. & P. Co.

1. Evidence of Motormen as to Running and Means of Stopping Car, Though Quasi Conclusions of Experts, Competent.

In an action for injuries to one riding in an automobile, suffered in a collision with an electric car, the evidence of motormen, with reference to running of the car and means for stopping it, is not rendered incompetent by reason of the fact that their testimony was in a sense that of experts involving quasi conclusions which it is the special province of the jury to deduce.

2. Written Instructions Requested and Given Before Argument Properly Sent to Jury Notwithstanding Charge is Oral.

It is not error to send to the jury room written instructions asked for and given before argument; and so doing is not inconsistent with the fact that where the charge given after argument is oral, it is impossible that instructions so given should also be sent to the jury room.

3. Last Chance Doctrine Must be Pleaded to Instruct Upon it.

The doctrine of last chance must be pleaded to entitle a party claiming its benefits to instructions upon it.

Brucker, Voegele & Henkel, for plaintiff in error.
McBride & Wolfe, for defendant in error.

GRANT, J.

This proceeding seeks the reversal of the judgment of the court of common pleas, because certain errors, as is alleged, have intervened and are shown by the record to the prejudice of the complaining party.

The parties here, as to position, stand in the order of their standing below.

The plaintiff declared on certain acts and omissions amounting to alleged negligence in the operation of one of its cars, whereby she without contributing fault on her part came to her injuries while riding as an invited passenger in an automobile, as was said by her.

2 O. C. C. Vol. 36

Richland County Appeals.

The defendant denied the charging parts of the petition by its answer, and retorted certain acts and omissions by the plaintiff as the causes which proximately contributed to, if they did not directly occasion, the hurts received by her. Upon issue joined as to the latter by reply, the cause was put upon its trial to a jury. There was a verdict for the defendant, upon which judgment was entered, after a motion for a new trial had been denied. To reverse that judgment is the prayer of this petition in error.

The main alleged grievances relied on to work such reversals are as stated in the brief of the plaintiff as follows:

"First. Evidence admitted for the defendant and objected to by plaintiff; refusal to admit proper cross-examination of motorman.

Second. Upon the weight of the testimony plaintiff was entitled to recover.

"Third. Error in giving special request to the jury. "Fourth. In sending to the jury the written request of the defendant below, given to the jury before argument.'

"Fifth. In refusing to instruct the jury to consider the oral charge in connection with the written request of the defendant below; in other words, allowing the jury to take the written request of the defendant below to the jury room and not instructing the jury to consider the same in connection with the oral charge given in this case.

"Sixth. Error in generally charging the jury."

In substance we are of the opinion that some of this rather formidable assignment of errors may be considerably abridged in the discussion of the principles and authorities involved. through the operation of the law of the survival of the fittest.

The first of these has to do with the admission of evidence from two motormen, which partook-necessarily of the nature of expert information thus imparted to the jury. Equally necessarily, as we think, it carried with it something looking like quasi conclusions, which it is vehemently urged in argument was a clear invasion of what should always be the open and unshared field of the jury.

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