
    BENES v BURKE
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9857.
    Decided June 10, 1929
    Ven Svarc and' W. H. Miller, both of Cleveland, for Benes.
    N. N. Pierce, Esq., Cleveland, for Burke.
    HISTORY:-Action in Municipal Court by Benes v Burke to recover damages received by reason of automobile collision. Directed verdict for defendant. Plaintiff brings error.
   VICKERY, PJ.

We think that a jury question was involved in this lawsuit as shown from the record, and the court might have come to the same conclusion had the defendant been compelled to introduce his testimony, but there may have been evidence brought out on the defendant’s side that would have strengthened the plaintiff’s case. At any event, at that time there was evidence, which would tend to prove a liability against the defendant in favor of the plaintiff and there was more than a scintilla of evidence to show negligence.

The fact that the defendant did not stop at the Boulevard stop, that he did not pay any attention to the horn of the plaintiff, and that the contact of the car car shows the plaintiff apparently reached the point first, or at least that the plaintiff had as much right to be there as the defendant had, inasmuch as it was a main thoroughfare and Fairmont Road ran into it, it seems to us that it was a question for the jury after hearing all the evidence or for the court in the absence of the jury after hearing all the evidence, to determine which had the right of way and which one, if either, was negligent.

We, therefore, think that the judgment of the court at that stage was wrong and must be reversed. Judgment reversed and the case is remanded to the trial court for a new trial.

Sullivan and Levine, JJ, concur.  