
    MILK WAGON STRUCK BY CAR..
    Circuit Court of Hamilton County.
    Cincinnati Traction Company v. Kroeger. 
    
    Decided, May 16, 1908.
    
      Negligence — Wagon Struck by Gar Coming up from Behind — Driver Guilty of Negligence Under Such Circumstances, When — Warrant for Arresting Cause From the Jury.
    
    One driving along the track of an electric car line, with the expectation that a car will come behind him, and an opportunity to turn off the track, and in the full possession of his faculties, is without excuse if he is overtaken by a car and his wagon is wrecked and he is himself injured.
    
      
      George P. Siimson and Eiitredge & Wilby, for plaintiff -in error.
    
      Jas. B. Jordan and Geoffrey Goldsmith, contra.
    Gieebn, J.; SiVing, P. J., and Smith, J., concur.
    
      
       For previous opinion in the same case, see 10 C. C.—N. S., 64.
    
   The plaintiff’s testimony shows that the team was traveling on the righthand track of the street railroad, that the driver was expecting a ear, and that there was nothing to prevent him from turning off the track if a car was discovered approaching.

It was his duty, therefore, to make use of his senses to ascertain if a ear was approaching from behind. A prudent man exercising his ears and eyes with ordinary care would have discovered the car in time to avoid it, and the failure of the driver to see or hear anything when in full possession of his faculties, is no excuse if he or his property is thereby injured. Railway Co. v. Elliott, 28 O. S., 340.

The motion to arrest the case from the jury should have been sustained.

Judgment reversed and judgment for plaintiff in error. .  