
    No. 250
    LAKE SHORE ELEC. RY. CO. v. HOYER, Admx.
    No. 19597.
    Supreme Court
    On motion to certify.
    Dock. Jan. 25, 1926;
    4 Abs. 88.
    465. ERROR — In an action for wrongful death is it error to refuse to direct a verdict when it has not been proven that after knowledge of peril a street car was not stopped in time to avoid an accident and that the car could have been stopped after knowledge of peril?
    225. CHARGE TO JURY — Is it error to refuse to charge the jury as to the law of contributory negligence in charging the doctrine of the last clear chance?
    Attorneys — Tolies, Hogsett, Ginn & Moi'ley, Cleveland, and Tyler, McMahon, Smith & Wilson, Toledo, for Company; Stahl & Price, Toledo, and Young & Young, Norwalk, for Hoyer.
   Virtie B. Hoyer, as administratrix of the estate of Thompson Hoyer, deceased, brought this action originally in the Lucas Common Pleas against The Lake Shore Electric Railway Co. for the alleged wrongful death of Thompson Hoyer.

It appears that on October 17, 1917 an automobile which the deceased was driving skidded upon the company’s tracks; that a car was approaching,at a rate of'45 or 50 miles per hour; that the motorman applied the brakes as soon as he saw the automobile, about 250 feet away from the place of impact; that when the collision occurred the brake rods of the street car were broken and that as a result the car was unable to stop for about 100 feet beyond the place where the car struck the automobile. The testimony disclosed that it was raining at the time of the accident.

The main witness for Hoyer testified that he had been a motorman for 13 years but that he had never driven a car of the exact size of the car which collided with the automobile. The judgment of $25,000 for the administratrix was affirmed by the Court of Appeals.

The Company, in the Supreme Court contends:

1. That a verdict should have been directed by reason of failure of proof that the car could have been stopped after the motorman apprehended the p>ril.

2. That the trial court erred in permitting one to testify concerning the operation of a car who had never driven a car of exactly the same size.

3. The trial court erred in omitting to charge the jury as to the law with reference to' contributory negligence in charging the application of the doctrine of the last clear chance.  