I cannot agree that "the character of the portion of the city where the collision occurred is not in controversy." This was one of the questions in issue, and the burden of proof was upon the plaintiff Konte to prove by a preponderance of the evidence, if he so claimed, that the place of collision was a business or closely built-up portion of the city of Toledo.
South avenue and Broadway are both main thoroughfares, because there appear to be street railway tracks on both of them, but that fact alone would be insufficient to designate the character of the location. The only evidence offered on this subject other than the two photographs was the testimony of the driver of the traction bus, elicited by Konte's counsel on cross-examination. The photographs were offered by counsel for Konte and by *Page 370 stipulation were received in evidence without further proof. Both of them were taken on September 15, 1928, but whether or not at the same time does not appear. One of these photographs, Exhibit 1, shows South avenue absolutely clear of traffic, except two automobiles parked at the northerly curb and one at the southerly curb, some little distance westerly of Broadway, and one person, a man, standing on the northerly sidewalk some feet westerly of the intersection. This exhibit shows Broadway free of traffic, except one automobile parked at the westerly curb northerly of South avenue, and four automobiles on Broadway southerly of South avenue, waiting, presumably, for the traffic signal permitting them to proceed northerly on Broadway. The other photograph, Exhibit 2, shows two automobiles parked at the southerly curb of South avenue easterly of Broadway, six, possibly seven, motor cars parked along the curb on Broadway northerly, and one southerly of South avenue, and two automobiles proceeding northerly and two southerly on Broadway, northerly of the intersection. Otherwise both streets are free of traffic, pedestrian or vehicular, except for two women and a baby buggy standing on the westerly sidewalk of Broadway northerly of South avenue. The witness Welch said: "There is stores and a bank and the Overland salesroom on one corner and a drug-store on the other corner. As near as I can say there is a grocery store, and going further west on South street there is a residential district. I didn't see any houses right there in the intersection or around the intersection." And in answer to the question, "Are they all store buildings?" he said "Store buildings. I imagine they live upstairs though. People live upstairs." *Page 371
It seems to me that store buildings as such do not constitute a business portion, nor mere residences a closely built-up portion of a municipality, within the meaning of Section 12603, General Code. The statute must be interpreted in the light of the object sought to be attained. A business or a closely built-up portion of a municipality must be such as to create more than the usual or ordinary traffic hazards. So far as the evidence discloses there is nothing to indicate the kind and character of the traffic upon either of these streets, except as shown in these two photographs, nor any evidence to show the character of the business conducted in the store buildings, or in fact, to show whether or not they were occupied, except as it may be inferred from signs on some of them, as shown in the photographs. If "closely built-up portion" means any part of a municipality where there are continuous residences or buildings in each direction, then, except the outlying districts thereof, practically all of each of our larger cities would fall, as a matter of law, within this description. The word "close," in its usual and accepted meaning expresses proximity, but not necessarily contact. Contact is not essential to constitute closeness. Buildings may be close to each other that are separated by intervening space; whether or not they are close being determinable by individual judgment rather than by any fixed rule. Of course the buildings, however close laterally, must be near to the street, since the statute was enacted to regulate traffic on the street; but how near? If buildings constructed to the lot or street line determine the question as a matter of law, then portions of some of the older towns of the state where *Page 372 houses extend to the lot or street line, are within the statutory designation, although there is comparatively no traffic on the street which the houses abut.
And if business portion includes any part of a city where there are five or six or seven store buildings, without regard to the character or magnitude of the business done, or the number of people attracted thereby, then numerous places in every city would come within this category. The statute seems to use the term business advisedly, making the question whether any particular portion of a municipality is a business portion dependent upon the character and perhaps the magnitude of the business therein conducted.
If one might imagine a single large department store with no other buildings anywhere near it, but doing a large volume of business, causing at that particular location a congestion of traffic, both pedestrian and automobile, such location might well be found to be a business portion within the meaning of the statute.
A street in a city may be crowded with traffic and still the portion of the city through which it extends not be within the business or closely built-up portion of the city within the meaning of Section 12603, General Code. Cherry street, for example, northwesterly of Bancroft, is always crowded with traffic throughout its entire length, but not because there are houses built closely together on either side of the street, with here and there a store, but because Cherry street is a main thoroughfare for traffic to and from the westerly part of the city, as well as for traffic to and from Detroit and other Michigan cities. The law is not conscious of fractions of a day, and *Page 373 it would seem that if any portion of a municipality falls within the statutory designation, measured by the usual daily activities in that community, it would continue to be such.
That reasonable minds might differ as to the character of the location in question is evidenced by the fact that the council of the city of Toledo, in the traffic regulations adopted, did not regard it as being either a business or closely built-up portion of the municipality.
The trial judge charged the jury: "Inasmuch as the intersection where the collision occurred was in a closely built-up portion of the city of Toledo, a rate of speed greater than fifteen miles an hour is prima facie evidence of a rate of speed greater than is reasonable and proper. Prima facie evidence of a fact is such as establishes the fact, and, unless rebutted or explained by the evidence, becomes conclusive, and it is to be considered as if fully proved."
Upon the evidence presented I think that the trial judge might with equal propriety have instructed the jury that the location was not as that it was a closely built-up portion of the city, within the meaning of the statute. This instruction determined for the jury what speed at this intersection was prima facie evidence of negligence, the question of speed being at least one of the important questions involved at the trial. I feel that these questions of fact should have been submitted to the jury and that counsel might well have asked the court to instruct the jury as to what was meant by "business or closely built-up portions of a municipality, as used in this statute. *Page 374