
    NEGLIGENCE — PLEADING.
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Henry, JJ.
    Isadore Goodman v. Cleveland Elec. Ry.
    Doctrine of Last Chance Required to be Pleaded.
    To authorize the application of the doctrine of last clear chance, an issue involving it must be made by the pleadings.
    [Syllabus by the court.]
    ERROR.
    
      Maloney & Rywn, for plaintiff in error.
    
      Squire, Sanders & Dempsey, for defendant in error.
   HENRY, J.

This was a personal injury damage case which the court below took from the jury. Goodman was a huckster, driving a one horse wagon eastward on the south side of St. Clair street. He was struck by a car going in the same direction. The accident occurred in the middle of an unusually long block, or interval between street intersections. Goodman had looked behind him when at or near the last street and had perhaps seen a car coming far down the street. He started to cross the street to see a customer; but, seeing that the ear was too close, he reined his horse around to the right to get off the track again. Before he had done so, however, the car struck the left hind wheel of his wagon and threw him out, inflicting injuries.

It is conceded on the argument that he was negligent in attempting to cross the track, but it was urged that the motorman’s subsequent conduct in failing to slow up his ear, was a new cause such as should have been submitted to the jury to determine whether or not it was the negligent and sole proximate cause of the injury.

The petition does not make this kind of a cause; for it does not allege that the motorman, after discovering plaintiff’s danger, failed to exercise ordinary care to prevent the threatened collision. Nor does the evidence tend to show that any such fact existed. True, such a state of facts may conceivably have existed, consistently with the circumstances as shown by the testimony, but there is no affirmative evidence thereof, and we can not see how the trial judge could do otherwise than direct a verdict.

Judgment affirmed.

Marvin and Winch, JJ., concur.  