
    The Baltimore & Ohio Rd. Co. v. Miller et al.
    
      Negligence — Automobile collision at street intersection — Charge to jury — Assumption that approaching ca/r will be operated in lawful manner — Right of way in driver approaching from right — Municipal traffic ordinance.
    
    1. In action for injuries from automobile collision at intersection, instruction not stating that plaintiff could not assume that defendant’s agent would operate car in lawful manner, if he knew he was not doing so, held not error, in view of evidence and entire charge.
    2. In action for injuries from automobile collision at intersection, charge that defendant’s automobile, approaching on plaintiff’s right, would have right of way if it arrived at intersection first or at same time with plaintiff’s automobile, interpreting right of way ordinance held proper, in absence of request for additional instructions.
    (Decided April 16, 1926.)
    Bkror: Court of Appeals for Brie county.
    
      Bíessrs. King, Ramsey, Flynn & Pyle, for plaintiff in error.
    
      Messrs. Young & Young, for defendants in error.
   Williams, J.

It appears from the evidence in this case that on or about October 26, 1922, while Paul Cebull, accompanied by one Roland Bauman, was driving a Maibohm sedan northerly on Wayne street, in Sandusky, and Edmon Miller was driving a two-passenger Dodge coupe easterly on Adams street, the two cars collided in the northeasterly part of the intersection of these two streets, and that Edmon Miller sustained a very serious injury in the neck. The evidence tends to show that Paul Cebull and Roland Baumann were at the time of. the collision engaged as employees of the plaintiff in error in the business of the company. Edmon Miller, as plaintiff, brought an action in the court of common pleas of this county against the Baltimore & Ohio Railroad Company and Gerald Tracy, the latter having been the owner of the automobile driven by Paul Cebull at the time of the collision. The issues involved were those of negligence, proximate cause, and contributory negligence. Upon trial of the case in the common pleas court, the jury returned a verdict in favor of the plaintiff Edmon Miller, and against the Baltimore & Ohio Railroad Company, for $9,750. Thereupon the court entered judgment in favor of the plaintiff below and against the defendant Baltimore & Ohio Railroad Company for that sum, and also entered judgment against the plaintiff and in favor of the defendant Gerald Tracy. The Baltimore & Ohio Railroad Company, as plaintiff in error, prosecutes this proceeding in error against Edmon Miller and Gerald Tracy, as defendants in error, and seeks a reversal of that judgment.

Plaintiff in error claims, among other things, that the court erred in instructing the jury as follows:

“If you find from the evidence that the automobile driven by Cebull was approaching Adams street, and that plaintiff was driving easterly along Adams street, and if you find from the evidence that the plaintiff arrived at the intersection prior to the time of the defendant’s car, and at such time, as in the exercise of reasonable care, he believed or had reason to believe he might cross the intersection before Cebull’s car had arrived at the intersection, assuming, as plaintiff had the right to assume, that Cebull would operate the car in a lawful manner, then plaintiff had the right to proceed to cross such intersection and then, of course, he would not be, under such circumstances, guilty of violating the ordinance.”

It is claimed by plaintiff in error, that, while the quotation from the charge may state the law with substantial accuracy, in view of the evidence adduced at the trial it was erroneous and prejudicial. The plaintiff below testified that he saw the car which Cebull was driving when it was approximately 300 feet from the intersection and that at that time he was 100 feet from the intersection; that he looked up Wayne street, the other way, and when he looked a second time the car Cebull drove was so far away, as he judged, that he could cross the street. Of course, the plaintiff had a right to assume that Cebull. would operate his car in a lawful manner, if he had no knowledge to the contrary. The charge, as given, makes no reference to the principle that Miller could not assume that Cebull would operate his car in a lawful manner, if he knew that he was not doing so. While the charge, as given, is in this respect subject to criticism, we do not feel, in view of the evidence in the case and the language of the whole charge, that the charge was, for this reason, prejudicial to the rights of the plaintiff in error.

Plaintiff in error also complains of the following passage in the court’s charge:

“If you find from the evidence that the automobile driven by Cebull arrived first at the intersection, or if the two automobiles arrived at the intersection at the same time, or nearly so, then the defendant’s automobile would have the right of way to cross the street, and it would be the duty of plaintiff to give way to such right and allow defendant’s automobile to pass across the street ahead of the automobile of plaintiff, and if plaintiff failed to do this, he would be guilty of violating the ordinance, and if his violation of the ordinance caused or contributed to cause proximately his own injury, he could not recover.”

This paragraph in the charge was evidently given by way of interpretation of an ordinance of the city of Sandusky, which provides as follows:

“Right of Way. — Every driver of a vehicle approaching the intersection of a street, where a traffic officer is not stationed, shall grant the right of way at such intersection to any vehicle approaching from his right.”

There was no traffic officer stationed at the crossing in question, and we think that the charge given, in so far as it covered this phase of the case, was a correct statement of the law. Counsel for plaintiff in error claim that the charge was so worded that the jury might find that only when the two automobiles arrived at the intersection at the same time would the one on the left have to give way to the one on the right. Counsel for defendant below requested no additional instructions regarding this phase of the case and were not in any way prejudiced by the charge given.

We have examined the other questions raised by the plaintiff in error and find that the record is free from prejudicial error. The judgment will therefore be affirmed.

Judgment affirmed.

Richards, P. J., and Young, J., concur.  