
    PARTNERSHIP — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    November 6, 1909.]
    Giffen, Swing and Smith, JJ.
    Cincinnati Traction Co. v. William Hulvershorn.
    1. Permitting Car to Strike Wagon Unable to Clear the Track Evidence of Negligent Control.
    Evidence that a motorman saw that the space between the track and curb of the street was so narrow that a wagon in front of him could not get out of his way is sufficient to sustain a verdict for damages resulting from his permitting the ear to strike the wagon; all the acts of negligence alleged were not required to be proven.
    2. Action for Tort by Partnership Having Fictitious Name not Barred by Failure to File Certificate.
    Failure of a partnership, doing business under a fictitious name, to file its certificate with the county clerk within four years of bringing an action for damages for a tort, the action being brought within the time prescribed by statute, does not bar the action under Sec. 3170-6 Rev. Stat.
    .Error to Hamilton common pleas court.
    This action was brought in the court below by William Hulvershorn, doing business as the Ingels Forwarding & Transfer Co. Plaintiff alleged that in September, 1902, while one of plaintiff’s teams, attached to a coal wagon, was being driven along Spring Grove avenue, Cincinnati, at a point where the space between the street car track and the curb was narrow, a traction car came rapidly up from behind and without warning to the driver of the coal wagon and in attempting to pass struck the hub of one of the wheels of the wagon with such force as to break the wagon and harness and kill one of the horses. A verdict was recovered below of $275.50.
    Kittredge, Wilby & Stimson, for plaintiff in error.
    Scott Bonham, for defendant in error.
   GIFFEN, P. J.

The plaintiff below was not required to prove each and every act of negligence charged in the petition, and it was sufficient that although the motorman saw that the space between the track and the curb was narrow, and that the wagon was too close to the track to pass in safety, he did not have his car under control, but allowed it to move forward with great force against the hub of the front wheel of plaintiff’s wagon. This much is clearly shown by the evidence and is sufficient to sustain the verdict.

That part of the general charge complained of required the jury to find substantially every act of negligence charged before returning a verdict for the plaintiff, and was more favorable to the defendant than the pleadings and evidence required.

There was no prejudicial error in admitting testimony in rebuttal.

Although the certificate of partnership was not filed with the clerk of the court until more than four years after the right of action accrued, yet the action was commenced before expiration' of that period, and under the proviso of See. 3170-6 Rev. Stat., the plaintiff could lawfully maintain the action.

Judgment affirmed.

Swing and Smith, JJ., concur.  