
    No. 614
    BRAUER, Admr. v. SCHMIDT
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2997.
    Decided May 31, 1927.
    225. CHARGE OF COURT — 465. Error— Where, by charge of court, right of pedestrian to cross street if vehicle is in sight, is practically eliminated, such charge is erroneous and highly prejudicial.
    First Publication of this Opinion
    Attorneys — Harry Hess for Brauer; Carl Lehman, Albert H. Leeker and Samuel I. Lipp for Schmidt; all of Cincinnati.
   BUCHWALTER, J.

This action was brought in the Hamilton Common Pleas by Maurice Brauer, Administrator of the estate of Dora Chale, deceased, against William Schmidt to recover damages for the wrongful death of said deceased.

It was alleged that death resulted from the negligent operation of a bus owned by Schmidt. Delendant answered, denying allegations of negligence and asserting that the negligence of the deceased was the sole cause contributing to the injury. The jury returned a verdict for Schmidc and error was prosecuted from this judgment entered on such verdict. The Court of Appeals held:

A reading of the charge shows that it was erroneous, and necessarily highly prejudicial to plaintiff in error. While it was based, possibly, on the syllabus in Shott v. Korn, 1 Ohio App. 458; the rule as it appears in the syllabus of that case is not a proper statement of the law, although the facts in that case may have warranted a verdict for defendant.

Under the charge as given in the case at bar, the jury could not have done otherwise than find for the defendant, as the right of a pedestrian to cross the street, if there was a vehicle in sight was practically eliminated.

Such a rule of law in this age of conjested traffic, would practically prohibit the crossing of a street by a pedestrian save and except at his or her sole risk, if there was an approaching motor vehicle within the range of vision.

Judgment reversed and cause remanded.

(Hamilton, PJ., and Cushing J., concur).  