
    NEGLIGENCE.
    [Hamilton Circuit Court,
    January Term, 1898.]
    Cox, Swing and Smith, JJ.
    C., H. & D. Ry. Co. v. John Shroder et al.
    Electric Car Obstructed After Going upon Crossing of Railroad Track.
    An electric car was obstructed upon the crossing of a railroad track, by a team of balky horses and a wagon, which could not be removed in time to prevent a railroad train from running into the electric car. Held, that the judge had a right to find that the electric railway company was not negligent in going upon the railroad track.
    Error to the court of Common Pleas of Hamilton county.
    This is the case where an electric car was obstructed and stopped on 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 to 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,()U0 for injuiies. It was claimed on the part of the street railway company that the accident was unavoidable on their part, having been brought about by ail uncontrollable agency, to-wit, the two balky horses. The jury accepted this view, and returned a verdict against the steam railroad company for $225.
    
      Thos. L. Michie, and Wm. Schmidt, fr., for Schroder. /
    
      Foraker, Outcalt, Granger & Prior, for the Street Railway Company.
    
      Ramsey, Maxwell & Ramsey, for C., H. & D. R’y Co.
   Swing, J.

We think the judgment in this case should be affirmed, on the ground that there was evidence sufficient before the 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 C., H. & D. R’y Co.  