
    No. 380
    RICHARDS v. CLEVE. JEWISH HOME
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided Oct. 11, 1926
    465. ERROR — Where one of the allegations' of plaintiff’s petition is that defendant failed to sound horn or give warning, it is not the province of the court to take this fact from jury and refuse to charge on same, and to do so is error.
    First Publication of this Opinion
    Attorneys — Stearns, Chamberlain & Royon for Richards; Paul Howland for Home; all of Cleveland.
   SULLIVAN, J.

May E. Richards, is an elderly lady about 76 years of -age, who, at the time of the accident was crossing Carnegie Ave., on the west side thereof, at the intersertion of E. 105th street and was hit by an automobile driven by an agent of the Cleveland Jewish Orphan’s Home.

It is urged that the court committed error prejudicial to Richards for the reason that the court eliminated from the consideration of the jury the issue whether or not immediately prior to the collision the horn of the automobile was sounded for the purpose of warning her.

The Court of Appeals held:

1. From an exarination of the petition, it appears as one of the grounds of negligence that defendant failed to sound the horn. Under every principle of trial procedure in jury cases this was an element to be taken into consideration as bearing on the truth of the charge of negligence.

2. The record as to this situation presented a critical question as to the negligence of the defendant and the contributory negligence of Richards; and we think it became the province of the jury to examine this fact in the light of all-other facts and circumstances.

Judgment reversed.

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