
    KAPLAN v BOSWORTH
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 14968.
    Decided Dec 23, 1935
    Squire, Sanders & Dempsey, Cleveland, for plaintiff in error.
    Pollock & Pollock, Cleveland, for defendant in error.
   OPINION

By THE COURT

Prejudicial error intervened in the trial in two respects.

In view of the inquiry of counsel for plaintiff in his examination of the jury on voir dire in regard to the number of witnesses and the trend and character of his argument to the jury on the samé subject, it was error prejudicial to the defendant Kaplan to refuse to give the request of dejfendant after argument covering the same ‘subject. Number of witnesses is an item that the jury may consider under the circumstances enumerated in the request.

Also, there was prejudicial error in the charge in directing the jury that the defendant was guilty of negligence as a matter of law if he drove his car upon the crosswalk without yielding the right of way to plaintiff if the light changed to green while he was in the act of crossing. The plaintiff had a preferential right to continue to cross but not an absolute right. It was a question of ordinary care for the jury in respect to the conduct of both under all the circumstances then and there existing with due allowance to plaintiff of his preferential right conferred by the ordinance in view of the conflict in the proof. Horwitz v Enrove, 129 Oh St 9.

Judgment reversed and cause remanded.

LIEGHLEY, PJ, and TERRELL, J, concur. LEVINE, J, dissents.  