
    AUTOMOBILES — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    November 13, 1909.]
    Giffen, Smith and Swing, JJ.
    
      Citizens’ Motor Car Co. v. Joseph Hamilton.
    1. Pedestrian Crossing Street in Front of Street Car without Ascertaining Imminence of Automobile Concealed by It is' not Guilty of Negligence per se.
    To cross a street in front of a street car without first ascertaining whether an automobile or other vehicle, proceeding in the same direction as the car and concealed by it, is running at a great and unlawful rate of speed is not negligence per se.
    
    2. Choice of Wrong Course by Pedestrian in Moment of Peril of Collision with Street Car or Automobile or Standing Still.
    A pedestrian, after having passed safely in front of a car, being confronted by an automobile running at great speed and but a few feet distant, is not to be held to the exercise of the same care in the choice of a way of escape that prudent persons would exercise were there no danger present; hence an instruction to the jury that a plaintiff thus situated could be charged with ordinary care only is relevant and free from error.
    Error to common pleas court.
    
      Robert Ramsey, for plaintiff in error.
    
      Theodore Horstman, for defendant in error.
    
      
      Affirmed, no op., Citizens Motor Car Co. v. Hamilton, 83 O. S. 450.
    
   GIFFEN,, P. J.

The plaintiff, Hamilton, could and did pass in safety over the street railway in front of a moving ear, and he was not negligent per se in thus crossing without first ascertaining whether an automobile or other vehicle was moving in the same direction with and on the other side of the street car at a dangerous and unlawful rate of speed. He had a right to assume that any such vehicle was running, if at all, at a lawful rate of speed.

When he reached the other side of the street railway he saw the automobile approaching at a dangerous and excessive rate of speed. Three alternatives were presented to him: either to stand still, retreat in front of the moving street car or attempt to pass beyond the automobile, any one and all of which were apparently dangerous, although had he remained standing-he would probably have avoided injury.

In such a situation of peril the rule stated in the third proposition of the syllabus of the case of Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. Rep. 559; 60 Am. St. Rep. 700], applies and the court so charged the jury; but it is claimed that the charge was not relevant to any issue tendered.

The plaintiff was required to exercise ordinary care, and the-instruction given was merely a definition of ordinary care on the part of a plaintiff, who, without his fault, was in a situation of unusual peril. He had reasonable grounds for believing that the course pursued would be the safest, and should not be charged with the consequences of error of judgment resulting-from the excitement and confusion of the moment. Iron Ry. v. Mowery, 36 Ohio St. 418 [38 Am. Rep. 597]; Pennsylvania Co. v. Langendorf, 48 Ohio St. 316 [28 N. E. Rep. 172; 29 Am. St. Rep. 553].

The judgment should be affirmed.

Smith and Swing, JJ., concur.  