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Greve v. Traction Co.

may have omitted to look for the approach of the car, will not, as a matter of law, defeat his right to recover for injury from a collision with such car if the motorman has not used such vigilance."

And in the opinion on page 195 Judge Spear uses the following language:

"It is possible he did look and, mistaking the speed of the car, thought he could safely cross, thus attempting to exercise an undoubted right in a public street. If he did it would be a question for the jury whether a man of ordinary prudence, situated as he was then situated, would have done as he did.

The driver of such a vehicle is not, in the use of the street, a trespasser, nor a licensee, but one pursuing an undoubted right, and the question always is, did he, in the pursuing of that right, exercise ordinary care? Nor is he bound to refrain from going upon the crossing merely because a street car is in sight. If he reaches the crossing first he is entitled to cross unless it should appear that the car is in such close proximity, and traveling at such speed, as to make it impracticable to check the same in order to permit him to cross in safety. 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.

"But, assuming that Brandon was guilty of some negligence in driving on the track, yet if the motorman, in the exercise of even ordinary care, after he saw the horse and appreciated Brandon's peril, had time and opportunity to avoid the possible consequences by checking the car, and neglected to so exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.

"Such a situation presents a case where different minds might reach opposite conclusions, and thus was a proper case for a jury under proper instructions."

This case was also where the accident was at a street crossing, but the principles laid down apply to the case at bar. In

Hamilton County Appeals.

the opinion of this court, the court below erred in directing a verdict for defendant. The judgment below is reversed and the case remanded for new trial.

Jones, E. H., and Swing, JJ., concur.

STREET RAILWAYS.

[Tuscarawas (5th) Court of Appeals, 1914.]

Voorhees, Shields and Powell, JJ.

NORTHERN OHIO TRAC. & L. Co. v. THOMAS E. JENKINS, Admr. 1. Contributory Negligence of Passenger, Alighting from Street Car Standing Still then Struck by Same Car Backing, Question for Jury. Whether the striking by a backing car of one who had just alighted therefrom while the car was at a standstill, was due to the negligence of the traction company or its operatives or to the contributory negligence of the one so injured, is a question for the jury, and their finding where supported by the evidence will not he disturbed by a reviewing court.

2. Substantial Justice Done Judgment not Reversed.

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.

PER CURIAM.

This was an action commenced in the court of common pleas of this county by the defendant in error, Thomas E. Jenkins, as administrator of the estate of Edmund F. Jenkins, deceased, against the Northern Ohio Traction & Light Company, plaintiff in error, for its negligence in causing one of its cars to run over the said Edmund F. Jenkins and causing his death.

In his petition filed in the court of common pleas the plaintiff alleged, in substance, that he is the duly appointed administrator of the estate of Edmund F. Jenkins, deceased, and that the defendant company is a corporation operating an electric street railway extending in part from Canal Dover through New Philadelphia and Midvale to Urichville in said county.

Traction & L. Co. v. Jenkins.

That on the evening of March 21, 1912, about 6:50 P. M., the said Edmund F. Jenkins was a passenger on one of the defendant's cars from New Philadelphia to Midvale, paying his fare therefor. After riding on said car to a switch near Midvale and after said car had come to a full stop, and after the conductor on said car was made aware of the fact that the said Edmund F. Jenkins would alight at said switch, said conductor consenting the said Edmund F. Jenkins, after said car came to a full stop, alighted from said car from the rear platform on the south side thereof, and after so alighting he started for his destination by attempting to cross said defendant company's track by passing around and in the rear of said car, which was not then in motion, and at a distance of several feet therefrom, when, without his fault, the defendant, by its conductor and motorman who were in charge and control of said car then on said main track, caused said car to suddenly start and move at a high rate of speed backward and in an opposite direction, to-wit, northwesterly, from that in which it had been running, wrongfully, negligently, carelessly and unskillfully moving said car backward and in the direction toward where the said Edmund F. Jenkins was crossing said track, and that in so moving said car backward as aforesaid, without any signal being given by the defendant or its agents or employees, and without the ringing of any bell, or the sounding of a gong, or the blowing of any whistle, or giving any notice or alarm whatever of the starting of said car, or of its change of direction, with no light on the rear end of said car, the said Edmund F. Jenkins was, without any negligence or fault on his part, run over by the defendant's said car, and was crushed and mangled under and between the wheels and trucks thereof, of which injuries he died within a few hours afterwards; all of which was caused by the wrongful, negligent, reckless, unskillful and unlawful acts of the defendant, its agents, servants and employees, in the management and control of said car; and plaintiff averred that said personal injuries and death which ensued resulted to the said Edmund F. Jenkins as a direct, natural and proximate consequence of said acts of the defendant.

Tuscarawas County Appeals.

The petition then avers that the said Edmund F. Jenkins left surviving him his widow and children, all of whom were dependent upon him for support; and damages are prayed for against the defendant company by said administrator in the sum of $10,000.

The defendant filed an answer to the foregoing petition, admitting that on March 21, 1912, the said Edmund F. Jenkins was a passenger on one of its cars from New Philadelphia to Midvale, and paid his fare, but that he voluntarily left said car when the same was near Midvale and that thereafter he walked in front thereof when it was moving backward and was struck by said car, causing injuries to his person from which he died shortly thereafter. It denies the negligence charged in said petition and avers that the injuries so received by the said Edmund F. Jenkins were the result of his carelessness and negligence, and it denies all the other allegations in said petition not specifically admitted to be true.

For a second defense the defendant sets up that before said car stopped at Midvale and while said car was in motion, and against the protest of the conductor of the said car, the said Edmund F. Jenkins left said car, and after alighting therefrom, and after it traveled some distance in the direction it was going, said car backed in an opposite direction, upon its track and the said Edmund F. Jenkins carelessly and negligently, and in full view of said car so moving upon said track, stepped upon said track at a time when said car was so near to him that it was impossible for the parties in charge thereof in the exercise of ordinary care to have stopped the same, and that when it was impossible to stop said car in time to avoid striking him and when, if he had looked, he could have seen, and if he had listened he could have heard, said car approaching just before or at the time when he stepped upon said track, and thereby have avoided being struck by said car, and have avoided receiving said injuries which caused his death; that said injuries so received were the result of his own carelessness and negligence in going upon said track in full view of said approaching car. The defendant denies that it was negligent in the operation of its

Traction & L. Co. v. Jenkins.

said car, and denies that said Edmund F. Jenkins received his injuries because of any carelessness of the defendant, but avers that his injuries and death were caused by his carelessness and negligence as before stated.

To this answer, the plaintiff filed a reply, denying that said injuries received by the said Edmund F. Jenkins, from which he shortly thereafter died, were so received by him because of his own carelessness and negligence, as alleged in the defendant's first and second grounds of defense.

Upon the issues made by the foregoing pleadings the case was submitted to a jury, resulting in a verdict of $2,500 in favor of the plaintiff. A motion for a new trial was overruled, and judgment was entered upon said verdict. A bill of exceptions was taken containing the evidence upon the trial, including the charge of the court to the jury, and by a petition in error said cause is brought before this court for review and for a reversal of said judgment of the said court of common pleas.

In said petition in error various grounds of error are alleged, among which is that said court erred in the admission and rejection of evidence offered upon said trial. An examination of said bill of exceptions fails to disclose that the action of said court resulted in working any prejudicial error to the plaintiff in error on either of said grounds. In several instances it appears that evidence was admitted against the objection of the defendant below which under the rules of evidence was perhaps not strictly proper, but the effect of such evidence was in nowise prejudicial to the legal rights of the plaintiff in error, and we therefore hold that the contention of the plaintiff in error in this respect is not sustained.

It is also contended that the court below erred in overruling the motion of the defendant below at the close of plaintiff's testimony, and a like motion was overruled at the close of the entire case, to arrest said case from the jury and direct a verdict for the defendant below. A reading of said bill of exceptions shows that the action of said court in this respect was well warranted in the light of the evidence contained therein.

3 O. C. C. Vol. 36

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