
    No. 621
    PRESTI v. CLEVELAND RY. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7380.
    Decided May 23, 1927.
    118. AUTOMOBILES — Preference given to vehicle nearest intersection, does not deprive vehicle traveling at right angles, from proceeding, if it can do so with the exercise of reasonable care.
    Error to Common Pleas.
    Judgment affirmed.
    First Publication of this Opinion
   SULLIVAN, PJ.

Judgment for the Cleveland Railway Co. was entered in the Cuyahoga Common Pleas in an action in which Charles Prestí, who was plaintiff, sought to recover damages for personal injuries and property damage sustained in a collision at the intersection of E. 47th St, and Woodland Ave., in the city of Cleveland.

It is claimed that counsel for the Company was guilty of misconduct in his argument to the jury. It is apparent that the argument of counsel, for plaintiff, was provocative of the language employed by Company’s attorney and which was complained of; and under all the authorities, the judgment will not be reversed, because there is an colloquy between counsel upon the same subject before the jury in argument.

The court gave in part, the following charge: “I charge you that * * * the street ear of the defendant under the ordinances and state laws had the right of way over the vehicle operated by the plaintiff on the day in question. By the right of way, I mean that the street car of the defendant had the right to proceed uninterruptedly in a lawful manner in the direction in which it was proceeding, in preference to the vehicle of the plaintiff, approaching from E. 47th St.

“This charge assumes that the Railway Co. had the right of way to the extent that the plaintiff was bound to stop his vehicle and surrender that right which he had, to the highway, to wit: to cross at the intersection with the exercise of reasonable care.

“By the charge, especially by the use of the word uninterruptedly, it would appear that it was the duty, because of the right of way-alone, for the automobile driver to stop until the railway motorman, having the right of way, passed safely over, notwithstanding by the exercise of reasonable care, the automobile may have been able to make the intersection safely and without interrupting the passage of the car.

Attorneys — Anderson and Lamb and Harry G. Fuerst for Presti; Squire, Sanders & Dempsey for Company; all of Cleveland.

“It still remains, however, the province of the court and jury to determine whether the respective parties have exercised the degree of care imposed on them; and the fact that one party is entitled to priority does not relieve him from the duty of exercising reasonable care to avoid injury to other travelers.” Huddy on Automobiles.

A reasonable interpretation of request charge number three given by the court at the defendant’s request, and which is prejudicial error, means that the plaintiff was guilty as a matter of law, if he attempted to cross the intersection in question, in the face of the law and ordinance as to the right of way, even though he had the right to do so if it could be done by the exercise of ordinary care.

Judgment therefore reversed and cause remanded.

(Levine, J., concurs; Vickery, J., dissents).  