
    No. 90
    DAYTON & TROY RY. CO. v. FRANK
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 667.
    Decided Dec. 22, 1925
    829. NEGLIGENCE — Motorman chargeable with ordinary care in regard to use of public highway, and bound to contemplate possibility that person in legitimate use of highway might, in an emergency, skid off the main highway on to tracks.
    Attorneys — McMahon, Corwin, Landis & Markham for Company; Kusworm & Shaman for Frank; all of Dayton.
   BY THE COURT.

Charles Frank brought suit in the Montgomery Common Pleas against the Dayton & Troy Electric Railway Co. for damages to his truck, which he claimed was struck by a traction car. He was allowed $335 by the jury; and the Company’s motion for a new trial was overruled and judgment rendered on the verdict.

Frank’s son, and an agent, who were in charge of the truck, testified that they "were on a highway when the wheels of the truck were caught on the crossing and skidded. They were unable to extricate the truck and the agent went up the track to flag the approaching car, but, notwithstanding his efforts, the car struck the truck. Error was prosecuted from the judgment of the Common Pleas and the Court of Appeals held:

1. The trial court allowed the jury to answer a special interrogatory as to whether the truck, when struck, was south of the crossing and the answer of the jury was “no.”
2. This interrogatory and answer were not controlling factors.
3. Even if the truck had skidded off the main highway, it would not materially change the obligation of the company.
4. The operator of the truck would not, under the circumstances, be limited to the rights of a trespasser as that term is commonly understood.
5. The motorman upon the traction car was chargeable with ordinary care in reference to the use of the public highway, and was bound to contemplate the possibility that a person in the legitimate use of the highway might, in an emergency, skid off the main highway.
6. There was s<ome evidence tending to prove the charge of negligence against the Company and the case was properly submitted to the jury.

Judgment affirmed.  