Epitomized Opinion
This is an action for property damages resulting from a collision brought by the Bollman Co. against the Cincinnati Traction Co. The accident occurred at a street intersection. The evidence was in conflict as to the speed at which the two vehicles were travelling and also as to which was the first to arrive at the point of intersection. Plaintiff recovered a judgment, whereupon error was prosecuted to the Court of Appeals. The only error assigned was the refusal of the court to give two special charges. The court refused these requests upon the ground that they attempted to advise the jury as to what an ordinary person would do under particular circumstances. In sustaining the judgment of the lower court, the Court of Appeals held:
1. To pick out certain facts and instruct the jury that such facts are negligent is improper when under all the facts and circumstances the jury might properly find that they did not constitute negligence. Such procedure is an endeavor to have the court instruct the jury what a person of reasonable and ordinary prudence wou’d do "nd r certain circumstances and in effect is to take from the jury those questions which are within its province to determine.
2. The rule is that he who reaches a crossing ox-street intersection first is entitled to cross, unless the circumstances are such that an ordinary px-u-dent person would not do so. The circumstances determine the care required, and^ even if one should arrive at the point of intersection firs'1', the jury is to determine from all the facts whether ox- not he used such care.