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Delaware County Appeals.

It was urged that the court below erred in overruling the motion of the plaintiff in error for an instructed verdict in its favor at the conclusion of the evidence introduced in behalf of the plaintiff below and again renewed at the close of all the evidence in the case. We think the law is well settled in this state as to the duty of the trial court where a motion is interposed in a case to direct a verdict, or for nonsuit, the authorities holding with practical unanimity that where there is evidence tending to prove negligence of one party or the other, the case should be submitted to the jury.

In Stockstill v. Railway, 24 Ohio St. 83, it is held that: "If the evidence tends to prove all the facts which it is incumbent on the plaintiff to establish in order to maintain his action, he has a right to have the weight and sufficiency of the evidence passed upon by the jury, and it is error for the court to grant the motion and render a judgment against him.'

In Dick v. Railway, 38 Ohio St. 389, it is held that:

"A motion to arrest the testimony from the jury and render a judgment against the party on whom the burden of proof rests, involves an admission of all the facts which the evidence tends to prove, and presents only a question of law for the court; but if there is evidence tending to prove each material fact put in issue, and indispensable to a recovery, it should be submitted to the jury under proper instructions."

In Gibbs v. Girard, 88 Ohio St. 34 [Ann. Cas. 1914c, 1082], it is held that:

"A cause of action for damages brought against a village for negligence in the care of its sidewalks, by reason of which it is claimed plaintiff was injured, presents a jury issue if there is some evidence tending to prove every essential fact necessary to entitle plaintiff to recover; and an order of the trial judge at the close of the plaintiff's case directing a verdict in favor of defendant over the objection of such plaintiff is a denial and violation of the right of trial by jury and therefore reversible error."

And Judge Wanamaker speaking for the court in said case, on page 47, says:

West v. Gillette.

"So long as the trial by jury is a part of our system of jurisprudence its constitutional integrity and importance should be jealously safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our constitutions."

From the foregoing and from numerous other like decisions by the courts of this state, it will be seen that the duty of the trial court is made clear in a case on a motion to direct a verdict wherein the evidence tends to support the material allegations charged in the petition. Applying this rule of law to the facts in the case at bar, was the action of the trial court in overruling said motion within the limitations of said rule? An examination of the record shows there was no little conflict in the evidence in reference to at least some of the material facts put in issue, namely, the rate of speed at which the car in question was being operated, the gait at which the horse of the decedent was being driven, and the location of the horse and carriage at the time of the accident, all of which were material and important facts as affecting the right of recovery by the defendant in error, and in the light of the foregoing citations we are of the opinion that the action of the court below in overruling said motions was proper.

It was also urged that the verdict of the jury is clearly against the weight of the evidence, because it was contended that the decedent's death was the result of his own negligence and was not wholly due to the negligent act or acts of the motorman in charge of said car. Not unlike most cases of this character, the liability of this company here, if any, depends upon a very few controlling physical facts in the case, and the law when applied to such facts ought not to render the case difficult of solution. An examination of the evidence contained in the bill of exceptions shows that as one of the defendant's interurban cars reached the summit of the elevation north of the intersection of Olentangy avenue and Sandusky street at said crossing, a distance of about 325 feet, the motorman in charge of said car saw the decedent's horse and carriage, with the curtains on said carriage and a rain-apron fastened in front

Delaware County Appeals.

of the seat of said carriage, through which said apron was an opening for the handling of the lines upon said horse, approaching the tracks of said railway, on said avenue, and while in the act of crossing said railway tracks said car collided with said horse and carriage resulting in the death of said Albert N. Gillette. The motorman testified that as said car left the summit of said elevation and descended towards said crossing said horse was walking on said avenue and was about fifty feet distant from said railway tracks on said crossing, that said car was then running from eight to ten miles an hour, that upon sounding the whistle on said car and noticing that no apparent heed was being given to it, he sounded further danger warnings, and when said car was about one hundred and fifty feet from said crossing, acting upon what he assumed to be a checking or stopping of the horse "just as he was about to cross the tracks," he released the air and as said car passed over said crossing it collided with said horse and carriage. That a driz zling rain was falling on said day which rendered the surface of the tracks of said railway company wet and slippery. He further testified that he was familiar with the surroundings at said crossing, that he passed over said crossing some six times daily in making his runs to and from Columbus, that he knew there was a hedge fence on the north side of the traveled portion of said Olentangy avenue and that said crossing was known to be dangerous. That the whistle on said car was sounded substantially as claimed by the motorman does not seem to be disputed, nor is the distance that said decedent was seen to be traveling toward and near to said crossing with said horse and carriage as said car descended said hill or elevation seriously in dispute, although the testimony of the motorman in this respect is not wholly borne out by persons aboard said car as passengers, especially as to the distance of said car from said crossing when the last danger signal was given and the position of the horse and carriage at that time, the main conflict of testimony being as to the rate of speed said car traveled from the summit of said elevation to and over said crossing. Joshua Stickney, a witness for the plaintiff, who was a passenger on said car, testified,

West v. Gillette.

in substance, that when said car descended said elevation from the summit thereof to said crossing it was running twenty miles an hour or more, that there was no change in the rate of speed traveled by said car during said distance. That when said car was within seventy-five feet of said crossing there was a sharp shrill whistle blown when he jumped up from his seat, that he looked out through a window and saw the carriage about seventy-five feet from the crossing. That the horse was then jogging on a trot and when he again looked out, the carriage was then from twenty to twenty-five feet from the crossing and that it was about this time that the car seemed to strike it. Other witnesses testified in support of the contentions of both the plaintiff and defendant. The undisputed testimony was that the right hind leg of the horse was broken, that the carriage was demolished, that the body of the decedent was hurled some thirty feet from the crossing, and that he thereafter died from the injuries received in said collision. Was said verdict returned clearly against the weight of the evidence given upon the trial? The plaintiff in error vigorously contended that the evidence fully justified their contention that the decedent's death was wholly due to his own negligence in attempting to pass over said crossing without exercising that degree of care necessary to avoid danger. The rule that a party about to cross a known place of danger is called upon to exercise his senses of sight and hearing and to do everything that a prudent man would do under similar circumstances to avoid being injured, is held in Cleveland, C. C. & I. Ry. v. Elliott, 28 Ohio St. 340, and in numerous other authorities that might be cited to the same effect, but the last pronouncement by our Supreme Court on this subject in Steubenville & W. Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. Rep. 325], is that the omission to look before going upon a crossing is not negligence in all cases as matter of law. For aught that appears here it may be that the decedent looked before going upon said crossing, and in the absence of proof to the contrary the presumption is that he did so look, Interurban Ry. & Term. Co. v. Hines, 32 O C. C. 355 (13 N. S. 170); Continental Improvement Co. v. Stead, 95 U.

Delaware County Appeals.

S. 161 [24 L. Ed. 403]; Texas & Pac. Ry. v. Gentry, 163 U. S. 353 [16 Sup. Ct. Rep. 1104; 41 L. Ed. 186], and observing the car at such distance as that he supposed and believed that he could safely pass over said crossing, and attempted to cross, if he did, this would not be negligence, or observing said car at the summit of said elevation and his horse and carriage being plainly visible to the motorman in charge of said car, and being first at said crossing, he may have relied upon his right to cross over said crossing before said car, even though the motorman was called upon to slacken the speed of said car, or, if necessary, to stop the same to avoid a collision. The first at said crossing under the facts stated, had the right to cross, for a street car company must operate its cars with reference to the rights of others traveling on a street and over street crossings. The motorman testified that he saw this horse and carriage approaching said crossing when some 300 feet distant therefrom, and it seems that he saw them plainly, too, for he testified that he even saw the opening in the rain-apron for the lines, and if this is true, did he not have ample time and opportunity to get his car under control before reaching said crossing as to have avoided the injury that followed said collision? Having seen the horse and carriage approaching said crossing at such distance, and about to cross, and on the crossing at the time of the collision, in the face of testimony that there was no change in the speed of the car from the summit of said elevation to said crossing, even in view of the claim of the motorman that the car was running but eight or ten miles an hour and that the horse apparently halted, as claimed, what was left for the jury to do under proper instructions? Concerning the relative rights of the public and traction companies at street crossings, in Toledo Elec. St. Ry. v. Westenhuber, 12 Circ. Dec. 22 (22 R. 67), the circuit court of Lucas county held, in a collision case between a street car and a carriage crossing the tracks of a street railway at the intersection of two streets that:

"1. 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

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