
    No. 675
    DEARWESTER v. STATE
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 635.
    Decided June 18, 1925
    118. AUTOMOBILES—When pedestrian is injured by reason of his own act, such act may be held to be the proximate cause thereof to him by driver of automobile only when it provokes or brings the injury.
    Attorneys—Chas. W. Folkerth, A. J. Fiorini for Dearwester; Albert H. Schajrrer, Pros. Atty., and Paul J. Wortman, Asst. Pros. Atty., for State; all of Dayton.
   BY THE COURT.

Peter Dearwester was indicted and convicted of manslaughter in the Montgomery Common Pleas. The State claimed that Dearwester, while in an intoxicated condition, and while driving his machine at an excessive rate of speed struck and killed one, Martin Shock.

Error was prosecuted and Dearwester contended that the presence of Martin Shock as a loiterer upon the highway must be held to be the proximate cause of the killing. The Court of Appeals said:

A pedestrian has a legal right upon the highway of the state, and it is only when a pedestrian is guilty of some act which provokes or brings his own injury that the act of such pedestrian may be held to be a proximate cause of an injury to him by the driver of an automobile.

The verdict of the jury was supported by sufficient evidence and was not contrary to the manifest weight of the evidence. Judgment affirmed.  