Cincinnati Traction Co. v. Kroger

Ohio Circuit Courts

Cincinnati Traction Co. v. Kroger

10 Ohio C.C. (n.s.) 64, 1907 Ohio Misc. LEXIS 244

DecidedJune 15, 1907

StatusPublished

This text of 10 Ohio C.C. (n.s.) 64 (Cincinnati Traction Co. v. Kroger) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cincinnati Traction Co. v. Kroger, 10 Ohio C.C. (n.s.) 64, 1907 Ohio Misc. LEXIS 244 (Ohio Super. Ct. 1907).

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Opinion

Although it is not in itself negligence to drive a wagon along a street railway track in the direction traveled by the ears, it becomes such if the evidence shows that it was needless, and that the driver failed to keep a proper look-out when he knew a car was about due.

The driver in this case, who was an employe of the plaintiff, testified that he had driven about 300 feet át a slow trot without [65]*65looking back; that there was no reason why he could not have driven on the left track, or on the left side.of the road, “only it run much easier on the tracks than it did at the sides”; nor any reason why he could not have looked oftener for an approaching car.

This raised a presumption of contributory negligence which was not removed by plaintiff’s testimony. The testimony of the defendant tended to prove that the wagon was in the left track, and suddenly turned into .the right track a moment before being struck by the car, which makes the statement, which was undisputed by the plaintiff’s testimony, a disputed fact. No motion was made at the conclusion of plaintiff’s evidence, hence this court can not now say as matter of law that the plaintiff’s driver was guilty of contributory negligence.

There is no allegation in the petition of such negligence of the defendants as warrants the application of the rule of “last chance”; hence the court erred in charging the jury upon this doctrine both in the general charge and in special instruction Number 3. Drown v. The Northern Traction Co., 76 O. S., —.

The court erred also in charging the jury without qualification that! ‘ the burden of proving contributory negligence on the part of the plaintiff’s driver is upon the defendant.”

In answer to a question by the foreman of the jury after their retirement the court charged as follows:

“A motorman who runs his car at an unusually fast rate of speed on a dark and rainy night under the circumstances of every particular case is guilty of negligence; and if such negligence directly or proximately causes injuries, the traction company is liable. ’ ’

This was too broad and should have been confined to the circumstances of this particular case; nor is it sound as a general proposition of law, for the rain and slippery track on a dbwn grade or other circumstances beyond the control of the motorman may have caused the unusual speed.'

The trial judge might well have set the verdict aside because not sustained by sufficient evidence, but this is not so manifest as to require this court to reverse the judgment.

Geo. P. Stimson, for plaintiff in error. James li. Jordan and Geoffrey Goldsmith, contra.

For the errors above stated the judgment will be reversed and the cause remanded for a new trial.

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Although it is not in itself negligence to drive a wagon along a street railway track in the direction traveled by the ears, it becomes such if the evidence shows that it was needless, and that the driver failed to keep a proper look-out when he knew a car was about due.

The driver in this case, who was an employe of the plaintiff, testified that he had driven about 300 feet át a slow trot without [65]*65looking back; that there was no reason why he could not have driven on the left track, or on the left side.of the road, “only it run much easier on the tracks than it did at the sides”; nor any reason why he could not have looked oftener for an approaching car.

This raised a presumption of contributory negligence which was not removed by plaintiff’s testimony. The testimony of the defendant tended to prove that the wagon was in the left track, and suddenly turned into .the right track a moment before being struck by the car, which makes the statement, which was undisputed by the plaintiff’s testimony, a disputed fact. No motion was made at the conclusion of plaintiff’s evidence, hence this court can not now say as matter of law that the plaintiff’s driver was guilty of contributory negligence.

There is no allegation in the petition of such negligence of the defendants as warrants the application of the rule of “last chance”; hence the court erred in charging the jury upon this doctrine both in the general charge and in special instruction Number 3. Drown v. The Northern Traction Co., 76 O. S., —.

The court erred also in charging the jury without qualification that! ‘ the burden of proving contributory negligence on the part of the plaintiff’s driver is upon the defendant.”

In answer to a question by the foreman of the jury after their retirement the court charged as follows:

“A motorman who runs his car at an unusually fast rate of speed on a dark and rainy night under the circumstances of every particular case is guilty of negligence; and if such negligence directly or proximately causes injuries, the traction company is liable. ’ ’

This was too broad and should have been confined to the circumstances of this particular case; nor is it sound as a general proposition of law, for the rain and slippery track on a dbwn grade or other circumstances beyond the control of the motorman may have caused the unusual speed.'

The trial judge might well have set the verdict aside because not sustained by sufficient evidence, but this is not so manifest as to require this court to reverse the judgment.

Geo. P. Stimson, for plaintiff in error. James li. Jordan and Geoffrey Goldsmith, contra.

For the errors above stated the judgment will be reversed and the cause remanded for a new trial.

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Bluebook (online)

10 Ohio C.C. (n.s.) 64, 1907 Ohio Misc. LEXIS 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cincinnati-traction-co-v-kroger-ohiocirct-1907.