
    NEQLICENCE — STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    April 29, 1908.]
    Marvin, Winch and Henry, JJ.
    Cleveland & Southwestern Trac. Co. v. James E. Fauver.
    Contributory Negligence of Driver in Collision Between Street Car and Vehicle, Question for Jury.
    It is for the jury to say whether the driver of a vehicle in driving along side of a street car track on a public street, was contribu-torily negligent in driving too close to the track.
    [Syllabus by the court.]
   WINCH, J.

By the consideration of. the common pleas court defendant in error recovered a judgment against plaintiff in error in the sum of $500 for personal injuries received in a rear end collision on Lake avenue, in the city of Elyria, between the car of plaintiff in error and the delivery wagon of defendant in error.

The accident happened about 4 o’clock on the afternoon of May 16, 1906.

The car and wagon were both going in the same direction, the wagon at about eight miles per hour and the car at from ten miles, as testified by the motorman, to twenty-five miles, as testified by other witnesses.

The petition alleges “that the defendant was negligent in running and operating its said car at said high rate of speed (twenty-fiv¡e miles per hour) on said Lake avenue, in said city of Elyria, and in approaching said plaintiff without warning while so running its said car at said high rate of speed.”

The ear tracks are on Lake avenue, about fifteen feet from the easterly curb. Lake avenue extends in a nearly northerly direction from the Lake Shore tracks about 2,000 feet to West street, where it turns in an oblique angle to the northwest. Lodi street comes in from the southwest at West street and joins with Lake avenue at an angle even more oblique than that formed by the two parts of Lake avenue, so that forks are formed at West street. The latter street crosses Lake avenue on a course due east and west. Evidently the two vehicles were approaching the forks of the road at about the same time.

When Fauver was within seventy feet of the track, where it is crossed by West street, he looked back to see if a car was coming. He could see 200 feet along back to the track on Lake avenue and saw no car. He proceeded northwesterly along the easterly side of Lake avenue, beeping in the beaten track, and when he had gone from 40 to 120 feet, just as he was turning around a mud hole, the car came up from behind, without warning struck the rear wheel of his wagon, upset it and threw him out, injuring him, as the jury found, in the manner claimed in the petition.

It appears from the evidence of both parties that Lake avenue was in a very bad condition, full of mudholes in and out among which the traveled road wound, many places coming so close to the track as to leave no room for a car to pass, if a vehicle was on the traveled road.

This condition of the road was well known to the motorman and was perfectly apparent to him at the time of the accident, so that the jury might well have found, as it necessarily did, that the motorman was negligent in running into the wagon without warning, for according to his own testimony, he saw the wagon for some time before he struck it, and at first thought it might cross at West street, and slowed down to give it a chance to do so.

The serious legal proposition in the case is the question whether the man on the wagon was guilty of contributory negligence in not looking back just before he drove around the mud-hole, which brought him too close to the track. This question was submitted to the jury under proper instructions. Bemem-bering that Fauver had looked back not more than ten seconds before he was struck (for that time is figured out from the distance he traveled and the speed he was driving), a majority of the court is not willing to say that the jury was clearly wrong in finding Fauver guiltless of contributory negligence.

With the numerous mudholes there were on this street, Fauver could not have driven along it without looking back nearly every second, if it was his duty to look back at each mud-hole. In other words, we conceive the situation on this road to be such that in driving along it the same rules are to be applied as if Fauver had driven onto the track itself at West street. having first looked back to see if a ear was coming, and had kept on the track until struck, without looking back again during the time which elapsed in this case.

We are aware that the conclusion is not warranted by the opinion delivered by Judge Davis in the case of Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844], but are not disposed to apply the reasoning of that opinion to the facts of this ease.

Drown turned out in the night season around a temporary obstruction, a wagon standing at the curb, of which the motorman had no notice. In this case the motorman knew the condition of the road and saw Fauver’s position and the whole situation. He should have expected Fauver to do just what he did do and we hesitate to say that Fauver, as a matter of law, was guilty of contributory negligence in failing to look back more than once.

We have examined all the errors alleged to have occurred at the trial but find none prejudicial to plaintiff in error. A majority of the court being of the opinion herein expressed, the judgment is affirmed.

Marvin, J., concurs.

Henry, J., dissents.  