State, ex rel, v. Cushing. [Vol. 25 (N.S.) judge, or his clerk, immediately transmitted to the clerk of the Court of Common Pleas of Hamilton County all of the original papers in said case, where it was regularly docketed by the clerk. A motion was then filed by the plaintiff in the common pleas court to dismiss said appeal on the ground that said common pleas court did not have jurisdiction to hear the same. This motion was heard by Wade Cushing, judge of that court and defendant herein, and was overruled, plaintiff excepting. Whereupon plaintiff came to this court praying for a writ of prohibition in this case prohibiting said Wade Cushing as judge of the court of common pleas from proceeding to hear said appeal upon said motion to dissolve the attachment. It appears, therefore, that the judge against whom the writ of application is sought, has indicated by his refusal to grant the motion to dismiss said appeal, that he is about to exercise judicial power in entertaining such appeal. It is also clear from the consideration of the Cincinnati municipal court act, that his action when taken will not be subject to review and that it therefore might result in injury for which no other adequate remedy than that of prohibition exists. So two of the three conditions necessary to warrant the granting relief as stated above are found to exist-the first and third. It is therefore necessary to determine whether or not the second condition is also present, that is, whether the exercise of such power is unauthorized by law. This brings us to the question as to whether there is a writ of appeal under the statutes, in the matter of overruling a motion to dissolve an attachment, from the municipal court to the court of common pleas. The municipal court, by Section 6 (103 0. L., 280) is given jurisdiction within the limits of the city of Cincinnati: 1. "In all actions and proceedings of which justices of the peace have or may be given jurisdiction." And by Section 7: "In all actions or proceedings the municipal court shall have jurisdiction in every ancillary and supplemental proceeding, before and after judgment, including attachment of person or property, arrest before judgment, interpleader, aid of execution, and the appointment of a receiver, for which authority is now, or may hereafter be conferred upon the court of common pleas, or a judge thereof, or upon justices of the peace." The municipal court, therefore, has jurisdiction of such an action as that from which this proceeding arises. Sections 10259 and 10260 are as follows: "The defendant may make a motion before the justice to dissolve the attachment, or to release the property, money, or credits attached or garnisheed, either or both. If overruled, it can be appealed by the defendant to the court of common pleas, if in session, or to a judge thereof in vacation, by giving notice to that effect to the justice, but no bond shall be required. "Upon such notice of appeal being given, the justice shall forthwith transmit to the clerk of the court of common pleas all the original papers. Thereupon within three days from such notice of appeal, or upon such further time as may be for good cause allowed, the court or judge shall hear and determine the motion as though it was originally brought in such court. Upon the final hearing the court or judge shall forthwith transmit the judgment with the original papers to the justice of the peace, which judgment must be entered upon his docket as the final determination of the motion. Such attachment, property, moneys and credits shall be disposed of as directed in the judgment." Under Section 10259 the judge of the municipal court had jurisdiction of defendant's motion to dissolve the attachment. This motion was overruled, and by the express terms of this section if overruled it can be appealed by the defendant to the court of common pleas. Section 10260 confers jurisdiction upon the court of common pleas to hear and determine that motion on appeal and provides what action shall be taken. The office of justice of the peace is not always filled by a lawyer or one learned in the law, and the purpose of these sections was to provide a speedy review of the question of attachment in a court of record. The Cincinnati municipal court act State, ex rel, v. Cushing. [Vol. 25 (N.S.) provides that the judges of that court shall have been admitted to the practice of the law not less than four years before their election. No doubt, if the act providing for the review of this motion to dissolve the attachment were being framed with reference to the municipal court rather than to the justice of the peace court, it would not have been deemed necessary to provide for a review by the court of common pleas. But the act being general in its terms, and providing for a review upon the overruling of the motion, it must be held from its language to apply to a case in a municipal court as well as to one before a justice of the peace. In the opinion of this court, therefore, Section 10259 authorizes an appeal to the common pleas court, where the motion to dissolve the attachment made before the municipal court has been overruled, and the judge of the court of common pleas in entering such an appeal is in the exercise of judicial power authorized by law. The application for a writ of prohibition is therefore denied. SWING, J., and JONES (E. H.); J., concurs. NEGLIGENCE IN PASSING A STANDING STREET CAR WITH AN AUTOMOBILE. Court of Appeals for Belmont County. D. D. DUBOIS, ADMINISTRATOR OF THE ESTATE OF Decided, May 7, 1915. Negligence Per Se-By Driver of Vehicle in Passing Car Discharging or Receiving Passengers-Contrary to the Provisions of a Prohibitory Ordinance-Duty of Ordinary Care on the Part of Driver and of Alighting Passenger Who Was Struck-Charge of Court. 1. Where a municipal ordinance prohibits drivers of vehicles on a public street from passing a street car while such car is standing, for the purpose of taking on and discharging passengers, it is negligence per se for the driver of an automobile to pass such car in disobedience of the provisions of the ordinance. 2. While a passenger alighting from such car is not relieved from the duty of using ordinary care, he has the right to act upon the presumption that drivers of vehicles approaching the car from which he is alighting will obey the law, and if, while using ordinary care himself he is injured by a collision with a vehicle driven past such car in violation of the provisions of the ordinance he can recover. METCALFE, J. Briefly stated, the allegations of the petition in this case are that William Gitchell was a passenger upon a street car in the city of Bellaire; that the car had stopped for the purpose of taking on and discharging passengers; that Gitchell alighted from the car; that he passed to the rear of the car intending to cross the tracks and the street to the sidewalk on the other side; that as he passed from the rear of the car onto the driveway he was struck by an automobile driven by the defendant, John H. Schell, and was killed. It is alleged also that there was in force at the time an ordinance of the city of Bellaire *Affirmed by the Supreme Court, February 29, 1916. prohibiting the drivers of vehicles upon the streets of said city from driving past a street car which was standing for the purpose of receiving and discharging passengers. The case was tried to a jury and a verdict rendered for the defendant. The three principal grounds of error relied upon in argument and the brief of counsel are: First. That the verdict is against the weight of the evidence. Second. Errors in the charge of the court, and Third. That the trial judge erred in refusing to charge the jury as requested by the plaintiff in error. Considering these in their order: As to the first proposition, it is sufficient for us to say that witnesses were called on the part of the plaintiff who testified to the fact that they saw Mr. Gitchell alight from the car, pass to the car's rear, and out upon the street upon the other side of the car, and that he was struck by the automobile when the car was standing; and, upon the other hand, witnesses called by the defendant state that the car had started and had gone on some distance when Gitchell was struck. We think the conflict of testimony is such that the questions of negligence and contributory negligence were purely questions for the jury, and we would not be authorized to set this verdict aside on the ground that it is against the weight of the evidence. Second. Did the court properly charge the jury? The definition of ordinary care as applied to this case by the trial judge is excepted to. We quote from the charge: "Ordinary care is that degree of care which persons of ordinary care and prudence are accustomed to observe under similar circumstances. That is, ordinary care as applied to the conduct of the defendant in this case is such care as persons of ordinary care and prudence in driving and managing automobiles in the streets of a city are accustomed to exercise and observe for the protection of persons traveling in the streets; and ordinary care, as applied to the deceased, William Gitchell, in this case is such care as persons of ordinary care and prudence observe in crossing streets at street crossings, to avoid danger and injury to themselves arising from the driving of automobiles through the streets." |