
    Shott, Admr., v. Korn et al.
    
      Automobile owner not liable for death of pedestrian, when.
    
    An owner of an automobile is not liable for the death of a pedestrian, killed while attempting to cross a well-lighted street intersection at night, in front of a rapidly approaching automobile, in full view and with lights brightly burning; hence, in an action for wrongful death against such owner a verdict for defendant is properly instructed.
    (Decided July 23, 1913.)
    Error: Court of Appeals for Hamilton county.
    Swing, J.; Jones, O. B., and Jones, E. H., JJ., concurring.
   This case is here on error to the judgment of the superior court of Cincinnati. In that court it was an action for the wrongful death of Benjamin Shott. The trial court at the conclusion of plaintiff’s testimony on motion of the defendants directed the jury to return a verdict for the defendants.

The accident occurred at 8.37 o’clock on the evening of May 5, 1912. Benjamin Shott was killed by being struck by an electric automobile, the property of Edna Farrin Korn, at the intersection of Rockdale avenue and Reading road in this city. Shortly before the accident it had been raining, but it was not raining at the time. The automobile was coming south in Reading road and the decedent, Shott, was preparing to cross Reading road from east to west. The automobile had its lights burning and the street at that point was lighted electric lights, so that Shott could have seen the automobile and the driver of the automobile could have seen Shott. There were no obstructions in the street. One witness alone saw the accident; this was Mr. Downing, who was standing at the intersection of the two streets. He testified:

“I saw a pedestrian half across the street and a machine coming from the northern intersection of Rockdale and Reading road. I paid only casual attention to it at the time, but when I saw neither the pedestrian nor the machine slacken of course that was a realization that there was an accident imminent. I didn’t see the actual contact of the machine and the body because of the automobile, the machine coming between my line of vision and the decedent, but I heard him strike the ground. I judge the car ran in the neighborhood of seventy-five or eighty feet after striking the man.”

Downing further says:

“Well, he was crossing the street from the east to the west. I thought he hesitated, and when I first saw the machine I judged he was waiting for the car to pass. I saw Mr. Shott and the machine probably at the same time. Upon hearing the bell I thought he slackened his pace, but barely paused to let the machine go by, and afterwards he continued to go across the street.”

From the evidence it seems clear to us that Shott was guilty of contributory negligence, and that his death was caused by it. The machine was in plain view for quite a distance before he started to cross the street. There was nothing to obstruct His view and there was nothing to distract his mind or prevent him from exercising the prudence which he should have exercised in looking for approaching vehicles when about to cross the street. He seems to have deliberately walked in front of the approaching machine, and under the evidence we think the court was justified in directing the jury to return a verdict for the defendants. The facts were really not in dispute and it became a question of law for the court.

Mr. Horace A. Reeve and Mr. Joseph L. Meyer, for plaintiff in error.

Messrs. Worthington & Strong and Mr. Albert Bettinger, for defendants in error.

There are other questions in the case, but with this view that we have taken the other matters are immaterial and it is not necessary to consider them.

Judgment affirmed.  