
    No. 340
    MORRIS v. BANKO
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6992.
    Decided April 18, 1927
    465. ERROR — 1. It is error for a trial court to refuse motion for new trial, when it says that verdict is clearly against the weight .of the evidence, but assumes that there was contributory negligence.
    2. When driver uses automobile on rainy night, with one head light only and without windshield cleaner, permitting rain to accumulate thereon, so that he couldn’t see through it, he is guilty of negligence, which precludes, contributory negligence on the part of one injured by such driver.
    First Publication of this Opinion
    Attorneys — Payer, Minshall, Karch & Kerr for Morris; Dustin, McKeehan, Merrick, Arter & Stewart for Banko; all of Cleveland.
   VICKERY, J.

Joseph Morris, a policeman employed by the City of Cleveland to direct traffic on a busy intersection in Cleveland, was struck and injured by Alexander Banko, driving an automobile with only one head light burning, and without having a windshield cleaner, allowing rain to accumulate on the windshield.

At the trial of the case in the Cuyahoga Common Pleas, a verdict was returned in favor of Banko, and judgment was rendered thereon. Motion for new trial was overruled, whereupon error was prosecuted to the Court of Appeals, which held:

Where the evidence is clearly to the effect that defendant was guilty of negligent, ana where the record shows that plaintiff was no! guilty of contributory negligence, the ea must be remanded for a new trial for the reason that the verdict is manifestly against the weight of the evidence.

Judgment reversed and cause remanded.

(Sullivan, PJ., and Levine, J., concur.)  