
    No. 725
    COMMUNITY TRACT. CO. v. GILMORE et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1771.
    Decided Nov. 22, 1926.
    First Publication of this Opinion.
    225. CHARGE OF COURT. — 465. Error.— Charge that if motorman had opportunity to avoid accident, it was his duty to do so, even though injured party were negligent, is erroneous. Court should charge that motorman was required to exercise ordinary care.
    Error to Common Pleas.
    Judgment reversed.
    Tracy, Champman & Welles, Toledo, for Traction Co.
    James Harrington Boyd, Toledo, for Gilmore.
   CULBERT, J.

Katherine Gilmore sued The Community Traction Co. and Anna Sibley, in the Lucas Common Pleas, for injuries sustained when an automobile, in which she was riding, driven by Miss Sibley, collided with a street car. A verdict for $2,000 was returned in favor of Gilmore against both the Company and Sibley.

In the general charge to the jury the court said: “Carelessness is an act which produces some wrong or injury of some kind. Carelessness may not always amount to negligence, but, in a case wherein something wrong is the result, then it is negligence.” Such charge is manifestly erroneous and prejudicial.

The court also charged that “If the car driver, the motorman, had time and opportunity to avoid the accident, it was his duty to do so, even though the other party who drove, the automobile was guilty of negligence.” This is erroneous because the jury was not instructed, as it should have been, that the motorman was required to exercise ordinary care only in the operation of the street car.

Judgment reversed and cause remanded.

(Richards and Williams, JJ., concur.)  