That is to say, the degree of care required of the defendant is such only as would be required of an automobile driver approaching a street crossing, regardless of the fact that a street car might be standing at the crossing receiving and discharging passengers, and also regardless of the fact that a municipal ordinance prohibited him from driving past the car while so standing. With regard to the ordinance, the trial judge said to the jury:

"While this ordinance has been introduced in evidence, and while the plaintiff claims that the same was violated by the defendant, which he denies, neither the ordinance itself nor its violation, if the same has been proven, is sufficient, in and of itself to establish the claim of the plaintiff that the defendant was guilty of negligence, but such ordinance, and the testimony tending to show its violation, if any, may be considered by you as circumstances tending to prove negligence."

And again, in another part of the charge this:

"You are instructed that, under the law, if a person goes unexpectedly in front of a moving automobile which is being prudently managed and controlled by the driver, that, is, that ordinary care is being used by the driver who is unable by the exercise of ordinary care and prudence to avoid injuring or killing such person, the driver is not liable. He is only liable in such circumstances if he fails to observe ordinary care and prudence in the management and control of his car, and by reason of such failure causes a collision."

The last quoted part of the charge may be correct as applied purely to the defendant's contention, but viewed in the light of other parts of the charge we think it is very misleading.

The plaintiff claims that the defendant, at the time his automobile struck the decedent, was violating an ordinance of the city of Bellaire, and that by reason of the violation of that ordinance the defendant was killed. Upon that question the trial judge said to the jury that they might consider the ordinance and any evidence tending to show its violation as evidence tending to prove negligence, and in effect stated that the viola

tion of the ordinance was not negligence of itself. That is to say an automobile driver, under the circumstances of this case, is charged only with the duty of ordinary care, and ordinary care is all that is required of him in passing a street car at a stop for the purpose of discharging passengers. No distinction is made as to where that ordinary care should be exercised, or whether the degree of care would be higher in one place than another. This, it seems to us, ignores the provisions of the ordinance and would allow the defendant to drive his automobile past the standing car in contravention of its provisions, with only the duty resting upon him of using ordinary care, and relieve him entirely from obedience to its provisions. We can not think that this is the law. The ordinance means what it says, and the safety of the public requires an obedience to its provisions. The decedent had a right to suppose that the defendant would obey the law, and using ordinary care himself to act upon that supposition; and the plaintiff had a right to have his theory of the case correctly stated to the jury, and if the jury found that the defendant did drive past the car in violation of the ordinance that such action was negligence on his part. And if, in consequence of that fact the plaintiff's decedent was injured while using ordinary care himself, the plaintiff would have a right to recover.

The jury under this charge had a right to understand that the trial judge's definition of ordinary care was as applicable to the claim of the plaintiff as to that of the defendant, and that the defendant might pass the standing car disregarding the ordinance entirely, and that when the decedent got off the car it was his duty to look for an approaching automobile, and if he did not do so he would be guilty of contributory negligence.

There could be no error in this case for the refusal of the trial judge to give the requests numbers one and two preferred by the plaintiff. The fact that the plaintiff's decedent was struck while the car was standing was disputed. While they state the law correctly, as applied solely to the plaintiff's contention, they, in effect, assume that that contention was undis

puted, and for that reason we think there was no error in a refusal to give them.

Probably the trial judge was misled in this case by a misconception of the case of Meek v. Pennsylvania Company, 38 O. S., 632. In that case the city ordinance was not plead as a ground of negligence, but the court held that the plaintiff had a right to introduce it in evidence in support of the allegation of negligence in the petition, not as a foundation for recovery, but as a circumstance tending to show negligence. We think the case of Baker v. Pendergast, 32 O. S., 494, correctly states the law as applied to this case:

"A person about to cross the street of a city in which there is an ordinance against fast driving has a right to presume in the absence of knowledge to the contrary that others will respect and conform to such ordinance. And it is not negligence on his part to act on the presumption that he is not exposed to a danger which can only arise through a disregard of the ordinance by other persons.

A good statement of the law also is found in 8 Thompson on Negligence, Section 10:

"When any specific act or dereliction is so universally wrongful as to attract the attention of the law-making power, and this concrete wrong is expressly prohibited by law or by ordinance, a violation of this law, a commission of the specific act forbidden is for civil purposes correctly called negligence per se."

For errors in the charge of the court as above pointed out, the judgment in this case is reversed.

SPENCE, J., and POLLOCK, J., concur.

DETERMINATION AS TO WHEN A CASE FAILED OTHERWISE THAN ON THE MERITS.

Court of Appeals for Hamilton County.

WILLIAM E. HUTTON ET AL V. WILLIAM S. CURRY.*

Decided, March 22, 1915.

Res Adjudicata-Relitigation of Question as to When a Case Failed Otherwise than on the Merits Can Not be Had, When.

When a court of last resort has decided that an action has failed otherwise than on its merits on a certain date, and it is sought by averments in an answer to the action to show that the former action failed otherwise than on its merits on a different date from that found by the court of last resort, the fact as to when the action failed otherwise than on its merits can not be relitigated under the averments of the answer, as that question is res adjudicata, and the averments of the answer which seek to raise that question again, are properly stricken from the pleading on motion.

Ernst, Cassatt & Cottle, for plaintiffs in error.
Thos. L. Michie, contra.

GORMAN, J.

The first assignment of error alleged by counsel for plaintiff in error is that the court below erred in granting the motion to strike from the answer the averments of the second defense.

The record shows that in February, 1904, the plaintiff's action in the former case was dismissed, and in April, 1904, this entry of dismissal was set aside because, as set out in the entry, the entry of dismissal was made by inadvertence and mistake. Then on April 21, 1906, the court found that the entry of April, 1904, setting aside the entry of dismissal, was made without notice

*Judgment modified by the Supreme Court, January 25, 1916, but not on this point decided.

to or knowledge of defendants after term, and was irregular and void, and set aside said entry of April 29, 1904.

Upon this state of facts on a demurrer to the petition the general term of the superior court and the Supreme Court, by an equally divided court, held that within the meaning of Section 11233 of the General Code the plaintiff in the former case failed otherwise than on the merits at the date of the last entry made by the superior court in special term, to-wit, on April 21, 1906.

This ruling we believe is final and conclusive in this case, and binds this court as to the time when plaintiff failed in the former action otherwise than upon the merits; and this present action having been commenced within one year from April 21, 1906, was brought within time and is not barred.

The theory upon which the general term of the superior court so held is that when the entry of April, 1904, setting aside the entry of dismissal, was made, the former action was then and thereby reinstated as a pending untried case and so continued until April 21, 1906, when the superior court in special term set aside the entry of April, 1904, because the same was made without notice and was therefore irregular and void, at which time the plaintiff's cause failed otherwise than upon the merits. It failed because of the last action taken by the special term of the superior court on April 21, 1906, and not by reason of the dismissal in February, 1904. If this last entry of April 21, 1906, had not been made, then manifestly the plaintiff would have been enabled to proceed with his former case and prosecute it to a final judgment on the merits; but by reason of the court's entry of April 21, 1906, he was then and thereby precluded from prosecuting his action to a final determination on the merits, and we are of the opinion that the general term of the superior court did not err in finding that this date, April 21, 1906, was the time when the plaintiff failed otherwise than on the merits of his

case.

Now after the case had been taken to the general term and to the Supreme Court, and this point decided adversely to the