Richland County Appeals.

thus raised is to be determined by the same rules as to burden of proof and otherwise as if made by the pleadings."

If one issue may be raised by the evidence in a negligence case, by the same token it is hard to see why another issue may not be so raised.

And there you are! This time it is the Supreme Court of Ohio against the Supreme Court of Ohio against the Supreme Court of Ohio in two cases, but with the same judges deciding in each. When that lawsuit comes off we want to be there to see which side wins. Until then, we must be content to be no wiser than the sages of the law who are put in high places over us. And until then we must leave this much mooted question where those same sages have left it-in nubibus—very much so.

Upon what we have tried to make an impartial survey of the record before us, we feel that we ought to adhere to the former judgment in this court in Northern Ohio Trac. & L. Co. v. Jenkins, 36 O. C. C. 30 (19 N. S. 602), of which the syllabus is as follows:

"Nor will the judgment based upon such a finding be disturbed for technical errors in the admission of evidence or the charge of the court, where it appears from the entire record that substantial justice has been rendered under all the circumstances."

In closing this opinion it may not be amiss to say an after word, lest from what has been said in respect of a brief in this case, more may be inferred than was intended, and lest the implied criticism thereupon be thought too harsh.

We are told in the good book that "All scripture is * * * profitable for doctrine, for reproof, for correction, for instruction in righteousness." In what was said and will now be said, all thought of "reproof" or of "correction" in a penal sense is disclaimed. Something "profitable" by way of "doctrine" and "righteousness" is not despaired of.

The mere mechanic-at-law, as Theodore Parker used to call him, and his work by the yard, or hundred, or on the piece-price plan, should distinctly lack encouragement by the profession, no matter how sharp his tools are or however conveniently ar

Harris v. Railway L. & P. Co.

ranged these may be in the tool box. One case decided by the court of last resort in the state of the forum which is in point, shall chase a thousand cases somewheres near in point, and a like number from other states brought forward to overthrow it. The latter are apt to have an effect on the judicial mind, charged with too much work to delight in listening to the roll call of the states, akin to that produced by a catswamp on agriculture-the ground is too overloaded with underbrush to bring good crops.

Out of the "six hundred" and odd cited cases, on which the "Light Brigade" have ridden into the jaws of death, in the brief we have two, the titles of which are very suggestive. One is "Radam v. Microbe Destroyer Co." The other is "Union Painless Dentist v. Dement." If the "microbe" for using the scissors on a digest and asking people to read the scissorings could be reached by the "Destroyer Company," the first case would be in point. If the citer had to use his jaws instead of a typewriter, the work of the "Union Painless Dentists" would be in point, or else another syllable would have to be added to the name of the defendant, "Dement."

We observe also a case in which the "Highland Boy Co." is a party and one in which Mr. "Pepper" is plaintiff. Neither of these reconciles a tired man with briefs that are anything— almost-but brief.

My brethren are not responsible for this comment, although it is to be hoped that they may share in the usufruct, if so be any briefer is exercised thereby.

We find no material error to the prejudice of the complaining party, in this record, nor are we able to say that substantial justice has not been done by the judgment complained of. For which reason it is affirmed.

Powell, J., concurs.

Shields, J., dissents.

Hamilton County Appeals.

STREET RAILWAYS.

[Hamilton (1st) Court of Appeals, April 19, 1913.]

Jones, Jones and Swing, JJ.

*FRANK GREVE V. CINCINNATI TRAC. Co.

Failure of Motormen to Check Speed or Stop Car before Collision with Vehicle Appearing by Evidence Makes Direction of Verdict for Defendant Error.

A driver of a vehicle injured in a crossing collision observing a street car about 200 feet distant rapidly approaching the street intersection, across which he started to drive diagonally to avoid an obstruction in the straight way, is not thereby negligent as a matter of law; hence, its appearing that the vehicle could have been clearly seen by the motorman in time for him to have avoided the accident by stopping or checking the speed. of the car, it is error to direct a verdict for the traction company defendant.

Thomas L. Michie, Harry H. Friedman and Jacob S. Hermann, for plaintiff in error.

Joseph Wilby, for defendant in error.

JONES, O. B., J.

Plaintiff drove a two-horse carriage carrying four passengers west on Eighth street which has, in the center of the street, double car tracks. Just after crossing Linn street he found the north side of the street in which he had been driving obstructed with a pile of gravel, granite blocks and street paving material, where the track was being repaired, so that it was necessary for him to cross over the tracks to the south side of the street in order to continue on his way. This he proceeded to do. When he started to cross the tracks diagonally he saw a traction car coming in the opposite direction, going eastwardly on the south track and as he testified some 200 feet away from him. Other witnesses fix the distance of the car from the crossing when it commenced to cross the tracks at from 150 to 300 feet. All the witnesses agree that the car was running at a *Affirmed, no op., Cincinnati Trac. Co. v. Greve, 91 O. S. 000 (60 Bull. 20).

Greve v. Traction Co.

"pretty fast" rate of speed and that the speed of the car was not in any way slackened until it was very close to the carriage— within fifteen feet one witness testified. The carriage was struck by the car on or near the hind wheel, although one witness thought it was at its front part from the fact that the lamp was injured. The driver was thrown from his seat to the street and was severely injured, his leg being broken and his shoulder dislocated.

The evidence tends to show that the motorman of defendant's car should have clearly seen the carriage upon the tracks, and that if he made proper effort to slacken the speed of his car and have it under control he could have avoided striking the carriage.

At the conclusion of the evidence offered on behalf of plaintiff the trial judge instructed a verdict for defendant.

In Toledo St. Ry. v. Westenhuber, 12 Circ. Dec. 22 (22 R. 67), which was a case of collision between a street car and a vehicle crossing a track at the intersection of two streets, the court held:

"It is negligence in the motorman of an electric street car, when the car is from 150 to 200 feet from a street crossing and he sees a wagon about to cross the track, not to try to stop or slacken the speed of the car until almost at the crossing, when by so doing the collision which ensued might have been avoided.

"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."

car.

In Toledo Consol. St. Ry. v. Rohner, 6 Circ. Dec. 706, 708 (9 R. 702), affirmed, Street Ry. v. Rohner, 57 Ohio St. 667: "This wagon was in plain sight of the motorman on the He came up this grade toward this bridge at a speed which, from his own story, was so rapid that when he saw that the wagon was not going to get out of the track he could not stop the car in time to avoid a collision. We think it was a fair question to submit to the jury, whether the railroad.

1

Hamilton County Appeals.

company, through its motorman, was negligent when it could not stop the car under these circumstances in time to avoid a collision with a vehicle in plain sight in front of it."

But counsel for defendant in error contend that these cases do not apply, because they fix the rule as to the right of persons to cross street car tracks at the intersection of streets and this accident occurred at least 100 feet from the intersecting street.

The same court in Lake Shore Elec. Ry. v. Majewski, 25 O. C. C. 55, 59 (1 N. S. 305), discusses the right of drivers not at street crossings:

"When they come upon the track of the company between streets, in other words, people driving vehicles along a street are not bound to keep away from the tracks of the street car company, as they are to keep away from the tracks of a steam railroad in the open country. They have a right to use the street, as well the part of the street where the tracks are as other parts of the street, and as this woman did to drive there ahead of the street car when the car was so far away that by the exercise of reasonable care she might suppose she had time to pass by such vehicles would not, in our opinion, be negligence. The street car company can not insist that the speed of its cars shall not be retarded by people driving in ahead of cars upon the streets when in the use of the street the exigencies require them to drive upon the tracks, they may drive there and the street car company must retard the speed of the car to allow them to use that part of the street as well as the part where the tracks are not laid."

And the latest case on the subject by the Supreme Court. Steubenville & M. Trac. Co. v. Brandon, 87 Ohio St. 187, paragraph 3 of the syllabus is as follows:

"Where the motorman of a street car being operated on a public street in a much frequented part of a city, discovers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track at a street crossing, in front of such car, it is the motorman's duty to use ordinary vigilance to stop or check the car in order to avoid a collision; and the fact that such driver