Ohio Traction Co. v. Miller

Hamilton Circuit Court

Ohio Traction Co. v. Miller

13 Ohio C.C. (n.s.) 67, 1910 Ohio Misc. LEXIS 214

DecidedApril 9, 1910

StatusPublished

This text of 13 Ohio C.C. (n.s.) 67 (Ohio Traction Co. v. Miller) is published on Counsel Stack Legal Research, covering Hamilton Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ohio Traction Co. v. Miller, 13 Ohio C.C. (n.s.) 67, 1910 Ohio Misc. LEXIS 214 (Ohio Super. Ct. 1910).

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Opinion

The plaintiff’s testimony and that of two of his witnesses, ait least, support his theory of the case; but one of his witnesses, Miss Cobbam, is uncertain whether the automobile collided first with the Millcreek Valley car or with the Vine-Norwood car. The great weight of the testimony, however, shows that the collision, if any, between the automobile and the Millcreek Valley' ear was almost the same instant it struck the Vine-Norwood car. It is not unexpected nor unusual that accounts of an accident of this character given by eye-witnesses vary as to time, distance and other details, especially when observed under conditions of great excitement and confusion; and we conclude from all the evidence that the plaintiff is mistaken in his recollection and recital of the facts.

It is rightly claimed by counsel that the defendant company was- bound to exercise, for the protection of its passengers, the highest degree of care consistent with the practical operation of its road; but a careful reading of the testimony fails to disclose any violation of that duty. The testimony shows that there was room for the automobile to pass the Millcreek Valley car on the left-hand or the Vine-Norwood car on the right-hand side of the street, and that there was no other vehicle or obstruction in the way. There being no necessity for the driver of the automobile to pass around the left side and in front of the VineNorwood car, the motorman on the Millcreek Valley car had no reason to anticipate such attempt; but on the contrary might well assume that he would take one of the two ways open for such travel. After the collision with the Vine-Norwood ear, the explosion followed so soon and the flames from the burning gasoline so completely surrounded the motorman and his car that he was powerless to avoid the consequences. The instinct of self-preservation would tend to restrain the motorman from .doing that which he is charged in the petition with doing, and the manifest weight' of the testimony exonerates him. The judgment will be reversed for error in overruling the motion for a new trial upon the ground that the verdict is not sustained by sufficient evidence, and the cause remanded for a new trial.

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The plaintiff’s testimony and that of two of his witnesses, ait least, support his theory of the case; but one of his witnesses, Miss Cobbam, is uncertain whether the automobile collided first with the Millcreek Valley car or with the Vine-Norwood car. The great weight of the testimony, however, shows that the collision, if any, between the automobile and the Millcreek Valley' ear was almost the same instant it struck the Vine-Norwood car. It is not unexpected nor unusual that accounts of an accident of this character given by eye-witnesses vary as to time, distance and other details, especially when observed under conditions of great excitement and confusion; and we conclude from all the evidence that the plaintiff is mistaken in his recollection and recital of the facts.

It is rightly claimed by counsel that the defendant company was- bound to exercise, for the protection of its passengers, the highest degree of care consistent with the practical operation of its road; but a careful reading of the testimony fails to disclose any violation of that duty. The testimony shows that there was room for the automobile to pass the Millcreek Valley car on the left-hand or the Vine-Norwood car on the right-hand side of the street, and that there was no other vehicle or obstruction in the way. There being no necessity for the driver of the automobile to pass around the left side and in front of the VineNorwood car, the motorman on the Millcreek Valley car had no reason to anticipate such attempt; but on the contrary might well assume that he would take one of the two ways open for such travel. After the collision with the Vine-Norwood ear, the explosion followed so soon and the flames from the burning gasoline so completely surrounded the motorman and his car that he was powerless to avoid the consequences. The instinct of self-preservation would tend to restrain the motorman from .doing that which he is charged in the petition with doing, and the manifest weight' of the testimony exonerates him. The judgment will be reversed for error in overruling the motion for a new trial upon the ground that the verdict is not sustained by sufficient evidence, and the cause remanded for a new trial.

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13 Ohio C.C. (n.s.) 67, 1910 Ohio Misc. LEXIS 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-traction-co-v-miller-ohcircthamilton-1910.