
    (First Circuit — Hamilton Co., O. ,Circuit Court
    Jan. Term, 1898.)
    Before Cox, Swing and Smith, JJ.
    THE C., H. & D. RY. CO. v. JOHN SHRODER and THE CINCINNATI STREET RAILWAY CO.
    
      Liability for injury by a steam, railway to a street railway passenger—
    . Error to the Court of Common Pleas of Hamilton county*
    This is the case where an electric car was obstructed and stopped cn the C.,H. & D. tracks at Brighton,by the balking directly in front of it of a team of horses, which belonged to the street railway company and were hitched to a wagon. Before the horses could be gotten out of the way so as permit the car to be moved, a train came round the curve and crashed into the street car. Schroder was a passenger on the car, and sued both companies for $5,000 for injuries. It was claimed on the part of the street railway company that the accident was unavoidable on their part, having been brought about by an uncontrolable agency, to-wit, the two balky horses. The jury accepted this view,and returned a verdict against the steam railroad company for $225.
   Swing, J.

We think the judgment in-this-case should be affirmed,op the ground that there was evidence sufficient before tbe jury to authorize it in finding that the railway company could have avoided the accident if proper care had been used, even after the street railway car had been placed in its perilous position. And we think the jury had a right to find that the street railway company was not negligent in going on the track of the O., H. & D. R’y. Co.

Thos. L. Michie, and Wm. Schmidt, Jr. for, Schroder.

Poraker, Outcalt, Granger & Prior, for the Street Railway Company.

Ramsey, Maxwell & Ramsey, for C., H. & D. R’y. Co.  