Hollamby v. Cleve Ry Co.

PER CURIAM

Plaintiff claims to have been injured in said collision.

The chief question for our consideration is whether or not the court committed error in its refusal to give the follow-lowing charge requested by plaintiff, after the general charge was given by the court:

“Mr. Minshall: Now if your Honor please, I'request that you charge that it would be negligence on the part of the defendant. The Cleveland Railway Company, to operate its car toward and past the place of the accident at a speed greater than was reasonable and proper having regard for the width, traffic, use and conditions then existing, at such place.

“The court: I don’t think that is the law.

“Mr. Minshall: May I have an exception to it?

“The Court: Certainly. That rule applies to automobiles and the general street traffic, .not to a car operated on a fixed track as this was.”

We are of the opinion that the charge requested by plaintiff stated the law and that it applies to street cars as well as automobiles. A perusal of the general charge discloses that the court nowhere in its charge covered that point, and it also appears that the general charge was in harmony with the court’s notion of the law as expressed in its comments when it gave reasons for refusing plaintiff’s request to charge. In our opinion error was committed by the trial court in refusing such request to charge, and that the same substantially affects the rights of plaintiff.

For this reason the judgment of the Common Pleas Court is ordered reversed and the case remanded for further proceedings according to law.

Vickery, PJ., Sullivan and Levine, JJ., concur.