
    AUTOMOBILES — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    November 26, 1910.]
    Giffen, Smith and Swing, JJ.
    Max Hirsch v. Cincinnati Traction Co.
    Failure of Driver of Automobile Running at Fifteen Mile Rate to Look Back for Approaching Street Car not Contributory Negligence.
    Failure of one, operating an automobile within municipal limits at the rate of fifteen miles an hour, to loot bact for an oncoming street car is not, as a matter of law, contributory negligence; failure of the motorman, after becoming aware of the danger, to exercise ordinary care to 'avoid collision, especially since the driver of the automobile endeavored with due care to get off the track, is the proximate cause.
    Error to common pleas court.
    
      Moulinier, Bettman & Hunt, for plaintiff in error.
    
      Geo. H. Warrington, for defendant in error.
   GIFFEN, P. J.

It is not, as matter of law, contributory negligence for one, while operating an automobile within the corporate limits of the city of Cincinnati at the rate of fifteen miles an hour, to fail to look back for an oncoming street car. He may, in the absence of an ordinance of the city permitting it, assume that the street' car will not come at a greater rate of speed.

The contributory negligence as alleged is specific, to wit:

“Neglect in running said automobile upon defendant’s track in front of an approaching ear at such a short distance that said car could not be stopped in time to avoid a collision. ’ ’

The evidence shows that the automobile had been running on the track for a distance of nearly a half mile; that the gong on the street car was sounded; that the motorman must, therefore, have been aware of the presence .of the automobile upon the track, and that the plaintiff heeded the warning by trying to get off the track, but was not given a reasonable time to do so.

Even though the failure to look back was negligence, it ceased to be a direct cause when the motofman became aware of the danger, and did not exercise ordinary care to avoid a collision while the plaintiff was, in response to the warning, endeavoring with due care to get off the track. The court erred in arresting the case from the jury and rendering judgment, for the defendant.

Reversed and cause remanded for a new trial.

Smith and Swing, JJ., concur.  