
    No. 568
    RICKETTS v. C. M. & L. TRACTION CO.
    Superior Court, Cincinnati, Hamilton County
    No. 58656.
    Decided June 11, 1923
    Tliis opinion has not been published except in Abstract.
    NEGILGENCE — Application of “last dear chance” doctrine; automobile law.
    Attorneys — Buchwalter, Headley & Smith, for Ricketts; A. H. Hodges, for Traction Company.
   MARX, J.

Epitomized Opinion

Ricketts, owing to darkness and fog, mistook the road and drove his automobile on the tracks of the traction company where it was caught between the ties. His companion started up the tracks toward an approaching interurban car. When he was between 100 and 300 feet from Riekett’s automobile he signaled the motorman to stop. The motorman Kd not stop, though he claimed to be going but Wve mile an hour, and was warned also by the rear light of the automobile. The motorman continued ahead until he struck the machine. Jury returned verdict for plaintiff. The court, in overruling the Traction Company’s motion for judgment notwithstanding > the verdict and rendering judgment for plaintiff on the verdict, held:

1. Ricketts was negligent in going upon the tracks and was a trespasser in so doing, but after his machine was caught between ties he acted promptly and did everything possible to warn motorman. After motorman was warned and after he saw or ought to have seen the tail light, he had “the last clear chance” to stop and avoid collision. Therefore it was proper for the jury to decide whether Rickett’s negligence or motorman’s negligence was the proximate or effective producing cause of collision. The jury, having' decided this question of fact for the plaintiff, the court as a matter of law cannot say finding was contrary to evidence.  