
    Whitaker v. Luebbering, Admr.
    
      Evidence — Municipal ordinance — Regulating pedestrians crossing street — Depositions — Notice of intention to take — Section Il:534> General Code — ■Sufficiency of designation of place — Negligence — Charge to jury.
    
    (No. 16358
    Decided June 8, 1920.)
    Error to the Court of Appeals of Hamilton county.
    This was an action brought in the superior court of Cincinnati by William H. Luebbering, administrator, to recover damages on account of the death of Mrs. Elizabeth Doecker. Mrs. Doecker was killed on the afternoon of August 4, 1917, while crossing Linn street, on the south side of Court street, at or near the usual and customary crossing, when she was struck by an automobile driven by defendant, Abner L. Whitaker.
    Upon the trial the defendant offered in evidence an ordinance of the city which provided: “Section 680-10 — Safety Zones — (1) The Director of Public Service shall designate all safety zones, street crossings and extensions of sidewalks, and provide for the proper designation of same by mark. * * * Section 680-11 — Pedestrians — (4) Pedestrians shall not cross streets or highways except at the regularly designated crossings, and then at right angles only.”
    The defendant also offered in evidence the deposition of the witness, Charles R. Heeter, who was an occupant of the automobile of the defendant at the time of the accident. The deposition of this witness was taken at Camp Hancock, upon notice, of which the following is pertinent: “The above named plaintiff will take notice that on, Tuesday, the fourth day of June, A. D. 1918, the defendant above named, will take the deposition of sundry witnesses to be used as evidence in the trial of the above cause, in behalf of the defendant at Camp Hancock, Georgia, in the county of Richmond, in the state of Georgia, between the hours of 8 o’clock a. m. and 6 o’clock p. m. of said day.”
    The depositions were taken by defendant in the absence of plaintiff or his attorneys. They were filed with the clerk of the superior court on June 24, 1918.- On the same day, June 24, 1918, plaintiff filed exceptions to said depositions for the reason that the notice served upon counsel for plaintiff to take the deposition did not apprise the plaintiff of the place where said deposition was to be taken by the defendant; that Camp Hancock is at least 1,000 miles from Cincinnati and was at the time one of the large army camps of the country and covered several thousand acres of ground, was several miles in length and several miles in width, contained many miles of streets and roads and many buildings and army tents, and many thousands of men were in military training there; that before the deposition was taken and after notice had been served, plaintiff endeavored, for the purpose of locating the place, to find out the name of the officer, or the name of the witness, or the exact location of the place, but was unable to obtain the information.
    Before argument at the request of the defendant, the court gave the following charge: “VI. The court charges that if you find that the plaintiff’s decedent attempted to cross Linn street at any point other than a regularly designated crossing or if you find that in attempting to cross Linn street, she did not cross at right angles with Linn street in violation of section 680-11, part 4 of the ordinances of the city of Cincinnati, she was guilty of negligence, and if you further find that such negligence was the proximate cause of the accident, or that it combined with the negligence of the defendant, if you should find that the defendant was negligent, to produce the proximate cause of the accident, then your verdict must be for the defendant.”
    The jury returned a verdict for the defendant, and with the verdict made answer to the following interrogatories:
    “Interrogatory 1. Did the plaintiff’s decedent, while crossing Linn St., exercise the degree of care that ordinary prudent persons would exercise under the same or similar circumstances ?
    “Answer. No.
    “Interrogatory 2. Did the plaintiff’s decedent look northwardly or southwardly for the approach of vehicles while she was crossing Linn street?
    “Answer. No.”
    Error was prosecuted to the court of appeals of Hamilton county and the judgment was reversed for the following assigned reasons:
    1. That the superior court erred “in admitting in evidence Section 680-11 (4) of the ordinance of the city of Cincinnati.”
    2. That the superior court erred in giving to the jury special charge No. 6 at the request of the defendant.
    3. That the superior court erred in overruling ■the motion of the plaintiff to strike the deposition of Charles R. Heeter from the files, and in permitting it to be read in evidence over the objection of the plaintiff.
    
      Messrs. DeCamp & Sutphin and Mr. Leo J. Brumleve, Jr., for plaintiff in error.
    
      Mr. W. H. Rucker; Mr. H. C. Busch and Mr. Thos. Usher, for defendant in error.
   By the Court.

Taking up the errors found by the court of appeals in order, as stated by them,the ordinance prohibiting the crossing of streets by pedestrians at other than regularly designated crossings made its operation dependent upon the action of the director of public service, for it specifically provided that “the director of public service shall designate * * * street crossings and extensions of sidewalks and provide for the proper designation of same by mark.”

No proof of such designation was offered, and it is conceded by counsel that no such designation by mark, or otherwise, had been made at the crossing of Linn and Court streets, nor indeed at any other place in the city of Cincinnati, prior to the accident, and if the ordinance could be held to have been in operation in respect to pedestrians crossing the streets it would have amounted to a prohibition of the crossing of any of the streets of Cincinnati by pedestrians; for it provides “pedestrians shall not cross streets except at regularly designated crossings.” To so hold would necessarily require the court to hold the ordinance unconstitutional and void, for the reason that it unnecessarily and unreasonably abridged the rights of the public in the use of the public streets. We, however, do not take that view, but hold that the ordinance in respect to crossings was inoperative until such time as the director of public service should comply with its provisions as to designating street crossings and extensions of sidewalks. It necessarily follows, then, that its introduction in evidence was erroneous, and it also follows that since its introduction was erroneous special charge No. 6 with reference thereto was equally erroneous.

Were these the only errors complained of, however, we would not hold them to have been prejudicial by reason of the answers to interrogatories submitted to the jury.

The admission as evidence, of the deposition of Charles R. Heeter, however, raises a more serious question. Section 11534, General Code, provides: “Written notice of the intention to take a deposition shall be given to the adverse party, * * * and shall specify the action or proceeding, the name of the court or tribunal in which the deposition is to be used, and the time when and place where it will be taken.”

The purpose of the notice is to apprise the opposite party of the time when and place where the deposition will be taken, so that from the information contained in the notice itself he may learn of the place where and the time when the deposition will be taken. Had the defendant in error presented himself at Camp Hancock at the time designated in the notice, how was he to know where-in that large camp the deposition was to be taken, and what information had he upon which he could base an intelligent inquiry ?

Assuming the correctness of the argument of plaintiff in error that every person was presumed to know that the place “Camp Hancock” meant the headquárters of that camp, and that the defendant in error was, therefore, charged with the knowledge of such meaning, had defendant in error acting upon such notice and knowledge presented himself at headquarters of what avail would such attendance have been, since the deposition in fact was not taken at headquarters but at the tent of one of witness’s commanding officers? Is it within the range of probability that he could have located the place where the deposition was to be taken by any other process than by shadowing the counsel for plaintiff in error, the identity of the witness being in no- way disclosed? Such extreme diligence is not required as a predicate to objection to the introduction of the deposition as. evidence.

The notice to take the deposition was fatally defective in that it did not apprise the defendant in error of the place where the. deposition was to be taken, and his failure to take extraordinary measures to ascertain the place did not amount to a waiver of objection thereto. The testimony of the witness being pertinent to the material issues of the case its introduction was prejudicial.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Jones, Matthias, Joeinson and Robinson, JJ., concur.  