
    No. 660
    PEOPLES RY. CO. v. SPINDLER
    No. 19894.
    Supreme Court
    On motion to certify.
    Dock. June 14, 1926.
    465. ERROR — Is it error in an action for damages arising from alleged negligence to ask the motorman of the electric car belonging to the defendant company if he understood that whenever a street car and an automobile come to a crossing the one who gets to the crossing first has the right of way?
    Attorneys — McMahon, Corwin, Landis & Markham, for Company; Mattern, Brumbaugh & Mattern, for Spindler; all of Dayton.
   Sue Spindler brought this action originally in the Montgomery Common Pleas against the Peoples Railway Company for damages arising from a collision between her automobile and an electric car belonging to the company.

It appears that a collision occurred between an electric car owned by the company and Spindler’s automobile while she was crossing the tracks at a cross-over in a public highway.

The error complained of is the court permitting the following question to be asked and answered by the motorman operating the electric car:

“Did you understand at that time that whenever a street car and an automobile came to a crossing the one that gets to the crossing first has the right of way?”

Another error complained of is the court’s refusal to charge as follows:

“As a matter of law the motorman was not required to immediately attempt to bring his car to a full stop just because he saw the automobile stopped near the crossing?”

Spindler recovered a verdict and the Court of Appeals affirmed the judgment.

The Company in the Supreme Court contends:

1. That the question asked the motorman was one of law and therefore not competent to be answered by a witness.

2. That the court erred in refusing to charge the jury as requested because such requested charge was true as a matter of law.  