
    INJURY OF A CHILD AT A CROSSING.
    Circuit Court of Hamilton County.
    Joseph Vetter, Administrator, v. The Cincinnati Traction Company.
    Decided, November 27, 1909.
    
      Negligence — In the Operation of an Electric Gar Approaching a Grossing< — Presumption as to the Manner in which the Gar will he Run — Proximate Cause — Doctrine of Last Chance — To he Made Available Must he Pleaded.
    
    1. An occasion requiring that a street car fender be dropped presents an instance of the doctrine of last chance, and to be made available must be pleaded.
    2. A pedestrian in approaching a street railway crossing is warranted in assuming that cars will be run at that point at a reasonable rate of speed and that the gong will he sounded, and where he is struck hy a car running at an excessive rate of speed and without being under control or the sounding of the gong, the negligence in so doing constitutes the proximate cause of the accident.
    
      Gogan & Williams, for plaintiff in error.
    
      Joseph Witty, contra.
    The intestate, a child four years of -age, was killed by being struck by a traction car at the Warsaw and Windfield avenues crossing.' The jury found in favor of the traction company.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   Negligence is charged in the petition as follows:

“Said defendant by its agents, officers and employes, did so carelessly, negligently and unlawfully operate one of its said cars in this, to-wit, that said car was being operated at a very high and unlawful rate of speed, that the gong or warning bell was not sounded and that the fender - on said ear was not dropped.”

In the ordinary operation of a street car there is no duty on the part of the motorman to drop the fender. That duty arises only when he sees a person in danger of being run over by the ear, and presents an instance of the doctrine of “last chance,” which to be available must be pleaded.

The charge of the court upon this subject was, therefore, not prejudicial.

The charge that “preponderance of'the evidence means all the evidence” is of course erroneous, but it is manifest from other parts of the charge that the court did not intend to so instruct the jury, nor were they thereby misled. The charge of the court, at page 207 of the bill of exceptions, concerning the liability of the defendant and defining negligence, is misleading and prejudicial.

The concrete charge required to inform the jury what would constitute negligence of the defendant, under the pleadings, is expressed in the first proposition of the syllabus of the case of The Cincinnati Street Railway Co. v. Snell, 54 O. S., 197, to-wit: The failure to so regulate the speed of the ear and give such warning (sounding the gong) as that the footman, using ordinary care himself, may, in the absence of unavoidable accident, cross in safety. It is probably true that the accident was unavoidable after the motorman first saw the deceased boy; but if the car approached the crossing at an excessive rate of speed, not being under control, and without warning, such negligence was the proximate cause of the accident.

The evidence tends to prove such negligence and the boy was not bound to anticipate it. He is entitled to assume that the car 'if any (for he evidently did not see it until he passed behind the coach in the funeral procession), was running at a lawful rate of speed, or the gong would be sounded. The motorman admits that he did not see the brother of the deceased, who crossed in front of the car a few moments before the accident, although the conductor standing on the rear platform did see him. This admission shows that the motorman was not keeping a proper lookout, and if he had, that he would have been reminded of the necessity of keeping the car under control to avoid injuring any other boy or person who might attempt to use the crossing. The testimony tends to prove that the accident would not have occurred, if the car had been under control and running at a reasonable rate of speed.

The definition of ordinary care as applied to the deceased infant given by the court, although erroneous (Rolling Mill v. Corrigan, 46 O. S., 283), was most favorable to. the plaintiff and therefore affords no ground of complaint by him. The special charge requested by the plaintiff, was properly refused.

Other errors are assigned but we find none that is prejudicial. The judgment will be reversed for error in the general charge of the court and the cause remanded for a new trial.  