
    No. 66
    No. 18299.
    JAMES L. RICKETTS v. CINC., MILFORD & LOVELAND TRAC. CO.
    Error to the Court of Appeals, Hamilton County. Motion for order to Certify Record filed in Supreme Court
    January 5, 1924.
    A Abs. 52.
    829. NEGLIGENCE — 225,. CHARGE TO JURY.
    Attorneys — Buchwalter, Headley & Smith, Cincinnati, for plaintiff; Alvin H. Hodges, Cincinnati, for defendant.
   Action for damages, commenced in the Superior Court of Cincinnati, in which Ricketts was plaintiff and the Traction Co. was defendant. The parties are herein referred to as plaintiff and defendant as they appeared in the trial court.

Plaintiff mistook the road and ran his automobile upon the track of the defendant. The automobile became caught between the ties. Plaintiff’s companion proceeded up the track a distance of from lOO to 300 feet and signaled the motorman of an approaching car. There was a red light showing on the automobile, on the end nearest to the approaching car. The car hit the automobile and damaged it.

The jury in the trial court rendeied a verdict for the plaintiff, awarding him damages.

The trial judge, in overruling the motion of defendant to set aside the verdict of the jury, applied the doctrine of last clear chance.

The Court of Appeals reversed the judgment of th.e trial court, finding error in the charge of the court, as follows:

“The law, however applicable to such fact, is that if the warning was given and such warning was observed, OR WOÜLD HAVE BEEN OBSERVED BY AN ORDINARILY PRUDENT MOTORMAN. then it became the duty of such motorman to exercise ordinary care and prudence.”

The plaintiff has filed his motion asking the Supr, me Court to direct the 'Court of Appeals to certify its record, claiming error to the Court of Appeals, as follows:

“First: The only error found in either the trial or charge is found in the following single phrase of ten words “OR WOULD HAVE BEEN OBSERVED BY AN ORDINARILY PRUDENT MOTORMAN.”
“Second: Admitting that ihe statement contained in this phrase was wrong, the court emphatically corrected this error no less than six times.”  