
    210
    CLEVELAND (City) v. KELLY
    Ohio Court of Appeals, Cuyahoga County
    No. 4169.
    Feb. 5, 1923
    This opinion -has not been published except in Abstract
    NEGLIGENCE — (1) Operating automobile at night as contributory negligence — (2) Failure to properly light obstfuctions in public highway — (3) Error in charge to jury concerning — (4) Policy of reviewing court when evidence is conflicting.
    Error to Cuyahoga Court of Common Pleas
    Attorneys — J. P. Lamb, E. P. Westenhaver and R. T. Miller, for City; Prayer, Winch, Minshall & Karsh, for Kelly.
   SULLIVAN, P. J.:

Epitomized Opinion

Kelly sued to recover damages sustained when the automobile he was driving collided with an abutment maintained by the city at the subway approach to the High Level bridge on W. 25th street in Cleveland. Kelly claimed that the city negligently placed and maintained the light at the approach to the subway, so that he was misled as to the location of said abutment. The city claims that Kelly was guilty of contributory negligence in driving at such a rate of speed in the darkness that.he was unable to stop his car in the distance covered by his vision. The city claims that the lower court erred in refusing to direct a verdict for the city at the close of the evidence in the case, and that the verdict was against the weight of evidence. Held by Court of Appeals in affirming a judgment for Kelly:

1. Although many other jurisdictions hold the reverse the rule in Ohio provides that one who drives his automobile at such a rate of speed that he would be unable to stop within the range of his vision is not, for that reason alone, guilty of contributory negligence. To hold otherwise would result in absurdity, since if the darkness were such that the driver was unable to see further than the front of his machine, he would be prevented from driving his machine at all.

2. Failure of a city to properly light an obstruction in a highway is negligence and the determination of whether the light were improper is a question for the jury.

3. When every phase of the case was submitted to the jury in language drawn by the defendant, and the jury returned a verdict for the plaintff, the court properly refused to direct a verdict for the defendant.

4. The court reasserts its policy of refusing to disturb a verdict not manifestly against the weight of the evidence.  