
    No. 659
    BERRYMAN v. KLEIN
    Superior Court of Cincinnati
    No. 58740.
    July 21, 1823
    268. NEGLIGENCE.
    Facts establishing contributory negligence— Automobile (47) accident — Uncertainty of identity (172).
    Appearances — Sidney Adler and- Albert Stern, for plaintiff; Chas. P. Taft II, for defendant.
   MAX, J.

Epitomized Opinion

Action by plaintiff who contended she was struck by defendant’s automobile. Defendant denied that his automobile struck plaintiff. The evidence was that defendant’s car was seen approaching the place of the accident shortly before plaintiff was struck an dthat the machine which struck plaintiff resembled defendant’s automobile, and that defendant' was found driving away from the place where plaintiff had been struck a few minutes before.

Plaintiq was standing in the road east of a street car track which ran along the west side of the road' waiting for a car to approach from the north. Plaintiff knew that she was hit but did not know what hit her. Verdict for plaintiff. On motion for new trial, held:

In view of the doubt as to the identity of the automobile' which struck the plaintiff, and) the negligence of plaintiff in needlessly standing bn the wrong side of the street car track in the traveled portion of the road without watching for the approach of vehicles, the verdict will be set aside bn the ground that it is not sustained by sufficient evidence and a new trial will be granted.  