
    No. 653
    HAYNES v. CASHNER
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 637.
    Decided May 26, 1925
    118. AUTOMOBILES—1. Fact that safety zone was not pleaded in action for injury to a person standing within it, not important; if otherwise competent, should have been admitted in evidence.
    2.' When power to-describe the business and closely built up district is not delegated to city under existing statute, an ordinance tending to do so is incompetent and properly excluded.
    Attorneys—Baumann & Haynes, Frank W. Krehbiel, Strother B. Jackson for Haynes; U. S. Martin, W. S. Rhotehamel for Cashner; all of Dayton.
   BY THE COURT.

Elizabeth Cashner brought her action in the Montgomery Common Pleas against Russell Haynes for damages for injuries sustained by her by reason of her being stlruek by a machine which Haynes was driving. It seems that Cashner was standing in a safety zone waiting for a street car when the accident occurred. Upon trial in the court below she received a verdict and judgment for $12,-000.

Error was prosecuted by Haynes and it was contended that the trial court erred in excluding the city, ordinance, the business and closely built up district. It was also claimed that the verdict was excessive. The Court of Appeals held:

1. The question is as to the competency of the ordinance, for it is important as it would reflect upon the rate of speed at which Haynes might lawfully travel at the point where accident occurred.

2. Fact that ordinance was not pleaded is not important, for even if it was not pleaded, if otherwise competent, should have been admitted in evidence.

3. The ordinance when adopted was legal because the statute then in force delegated to the city the power to prescribe the business and closely built up district.

4. Under statute as it existed when the accident here occurred, no such power was delegated, but the question of a business or closely built up district became a question of fact for the jury. This view was taken by the trial court, and which this court approves.

5. The ordinance therefore was not competent and was properly excluded.

6. The injuries were such as to warrant the amount of the verdict and is not excessive as would jusitfy a reviewing court in disturbing it. Judgment afflrmed.  