Cuyahoga Lumber Co. v. Brinkman

31 Ohio C.C. Dec. 484, 16 Ohio C.C. (n.s.) 181, 1906 Ohio Misc. LEXIS 303

Opinion

WINCH, J.

Defendant in error was a motorman, operating a street ear on Euclid avenue; he was coming west on that street on a certain day in August, 1901, when a wagon loaded with lumber belonging to plaintiff in error, coming from the west on the south side of the street, turned suddenly across the track at Bussell avenue and in front of the ear which the motorman was operating, that a collision occurred and the motorman was hurt. He sued the lumber company and recovered judgment. The lumber company asks us to set this judgment aside because, as it alleges, it is not sustained by sufficient evidence. This is the only reason urged in this court for a reversal.

"We have carefully read all the evidence given by the eye witnesses to the accident. There was evidnce tending to show that the driver of the lumber wagon was negligent; there was evidence tending to show that the motorman was negligent; there was evidence tending to show that both were negligent.

Evidently the jury believed that the driver of the lumber wagon was calculating upon a nicety when he turned in front of the approaching ear, and should have used better judgment and waited until the car got by, for it could not turn out of the track, while the wagon, could. Upon this theory the judgment is sustainable and we are unable to say that the evidence does not sustain it.

It was a close cáse on the facts, and the opinion of the twelve men who weighed the facts should not be set aside, it being conceded that the defendants below had a fair trial.

Judgment affirmed.

Marvin and Henry, JJ., concur.