
    PRITCHARD v CAVANAUGH
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct 19, 1934
    Manchester, Ford, Bennett & Powers, Youngstown, for plaintiff in error.
    
      Harrington, Huxley & Smith, Youngstown, for defendant in error.
    KLINGER and GUERNSEY, JJ, (3rd Dist) sitting by designation in place of LYNCH and SMITH, JJ, (7th Dist)
   OPINION

By KLINGER, J.

Under the law, as defined in Ohio, the defendant in this action had the right of way. Both under §§,6310-28a and 6310-28 GC, it was the duty of the driver of the automobile in which the plaintiff was a passenger to look to his right as he approached State Highway No. 17, and it was his duty to see the approaching automobile, since it is undisputed that the automobile was on the highway and that it was approaching in the direction of the crossing, and his failure to see it is no excuse.

The defendant in this case had a right to expect those using highway No. 45 would observe the traffic laws and would give him the right of way.

The only evidence as to the speed at which the defendant was operating his car as he approached the crossing at more than forty or forty-five miles an hour, was that offered by the plaintiff and the driver of the automobile in which he was riding, Seederly, and according to their own testimony, they had no way of knowing how fast the defendant’s automobile was going at the time it approached the crossing. According to their own testimony, they only saw it a fraction of a second before it struck their car, and according to their own testimony, they had no observation or way to show how fast the defendant’s automobile was going at the time of the collision.

We believe that under the law as laid down in the 127 Oh St, 147, and cases therein cited and referred to, the defendant, C. B. Pritchard, was not guilty of negligence, but that the collision and injury was attributable entirely to the negligence of Seederly, and that the verdict and judgment should be set aside and held for naught, and final judgment entered for plaintiff in error, C. B. Pritchard, at the costs of the defendant in error.

ROBERTS and GUERNSEY, J.J, concur in the judgment.  