Epitomized Opinion
Published Only in Ohio Law Abstract
Original action for damages in the Common Pleas wherein Edward J. Early, administrator, was plaintiff and the Columbus, D. & M. Electric Co. was defendant. Defendant’s interurban ear was passing along a street in Columbus when plaintiff’s decedent, a boy 4 years old, walked out into the street, from behind an automobile into the path of the car, which ran over and killed him. , The action was based upon three grounds of negligence; first, defective construption of the pilot, and second and third, the negligence of the motorman in failing to see the child and stop the car and in failing to give a warning by -signal or bell. Judgment was rendered for plaintiff for $2,000. The Electric Co. prosecuted error. Held:
There is grave doubt if the averments and the proof upon the first ground of negligence are sufficient, but that is not ground for reversal if the verdict and judgment may stand upon one or both of the other assignments of negligence. A railway company, operating cars upon a street in a municipality, and a pedestrian have, in a legal sense, equal rights to the use of the streets, and each must exercise due care in view of the circumstances. There was evidence from which the jury might legitimately infer the negligence on the part of the motorman ascribed to him in the second and third assignments of negligence. Judgment affirmed: