Cincinnati Traction Co. v. Kroger

20 Ohio C.C. Dec. 829, 11 Ohio C.C. (n.s.) 123

Opinion

GIFFEN, J.

The plaintiff’s testimony shows that the team was traveling on the rig'hthand track of the street railroad, that the driver was expecting a car, and that there was nothing to prevent him from turning off the track if a car was discovered approaching.

,. It was his duty, therefore, to make use of his senses to ascertain if a' car was approaching from behind. A prudent man exercising his ears and eyes with ordinary care would have discovered the car in time to avoid it, and the failure of the driver to see or hear anything when in full possession of his faculties, is no excuse if he or his property is thereby injured. Cleveland, C. C. & I. Ry. v. Elliott, 28 Ohio St. 340.

The motion to arrest the ease from the jury should have been sustained.

Judgment reversed and judgment for plaintiff in error.

Swing and Smith, JJ., concur