
    STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    May 16, 1908.]
    Swing, Giffen and Smith, JJ.
    
      Cincinnati Traction Co. v. Kroger.
    Duty op Driver of Wagon on Steeet Cae Track.
    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.
    Error to Hamilton common pleas court.
    G. P. Stimson and Kittredge & Wilby, for plaintiff in error.
    J. R. Jordan and Geoffrey Goldsmith, for defendant in error.
    
      
      See prior opinion for more complete statement, ante, 654.
    
   GIFFEN, J.

The plaintiff’s testimony shows that the team was traveling on the rig'hthand track of the street railroad, that the driver was expecting a car, 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' car 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. Cleveland, C. C. & I. Ry. v. Elliott, 28 Ohio St. 340.

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

Judgment reversed and judgment for plaintiff in error.

Swing and Smith, JJ., concur  