174 N.E. 20 | Ohio Ct. App. | 1930
This case comes into this court on a petition in error, and it is an automobile accident case. The record before us shows that the plaintiff, William Hattie, was a boy seven years of age, riding in a coaster wagon in a southerly direction on the east side of Dueber Avenue, Southwest, in the city of Canton, Ohio. Dueber Avenue is intersected at right angles by Ninth Street, Southwest.
The record shows that as the boy approached Ninth street, there was an automobile stopped on Ninth street, headed west, ready to cross Dueber avenue; that the boy on his wagon proceeded behind the stopped automobile and directly in the path of the truck of defendant, J.D. Shaheen, which the defendant was then turning to the east off Dueber avenue onto Ninth street. The evidence in the record discloses that the defendant stopped his truck almost instantly, with the front wheels immediately east of the crosswalk, and the rear wheels immediately west of the crosswalk, and the center of the truck over the center of the crosswalk. It is disclosed by the evidence that the boy did not see the truck until he was hit. The driver of the truck did not see the boy until he came out from behind the stopped automobile, when it was too late to avoid the accident. The boy was unattended at the time of the accident, and the evidence shows that he was very familiar with traffic and with the dangers of traffic; that he had learned to look for approaching vehicles, and had been a boy that was very careful about traffic. *52
The plaintiff below in his petition charged the defendant with operating his truck without having it under proper control, without sufficient brakes, without giving the right of way to pedestrians on crosswalk, and in failing to warn by horn the plaintiff in error of his approach. The defendant herein denied each and every allegation of negligence and alleged that the injuries sustained by the plaintiff in error were caused solely and proximately by plaintiff in error's own negligence in failing to exercise any degree of care whatsoever for his own safety while attempting to cross from the north to the south of Ninth Street, Southwest, in this, that plaintiff failed to keep any lookout for approaching vehicles without ascertaining whether or not he could cross the street with safety, and that the plaintiff after he discovered, or in the exercise of ordinary care should have discovered, the defendant's truck in the act of turning into Ninth street, continued to cross it at a time when the defendant's truck was so close to plaintiff that the defendant could not stop or deflect the course of his truck in time to prevent said accident and the consequential injury to plaintiff.
A careful examination of the record discloses and substantiates the defendant's charges of negligence on the part of plaintiff, but we believe the record wholly fails to substantiate the charges of negligence made by plaintiff against the defendant. We do not deem it necessary to review the testimony of the numerous witnesses in this case at great length. Suffice it to say that from a careful examination of the record we find and believe that the verdict of the jury was fully warranted by the evidence in the case. *53
Another error claimed by plaintiff in error in his brief is that the court erred in refusing to give the second charge requested by plaintiff. It is observed from an examination of this charge that it did not reflect a true statement of the law applicable to the case at bar. It is further contended in oral argument that the court erred in charging the jury that the plaintiff, who was riding on a wagon, which he was steering and propelling with one of his feet, was not a pedestrian.
The city ordinance, we note, which was in effect at the time of the happening of the accident, although not defining the word "pedestrian," refers to pedestrians in many instances, and in each instance the reference is to some one afoot, and it is contended on the part of the defendant that the plaintiff was operating a vehicle. We note that the word "vehicle," as used in Section 2 of the ordinances, includes equestrians, led horses, and everything on wheels or runners, except street cars and baby carriages. In Section B of the same ordinance the word "driver," as there used, includes the rider or driver of a horse, the rider of a wheel, and the operator of a vehicle, automobile, motor vehicle, or motorcycle.
We believe that under the ordinance that was in effect at the time of this accident the plaintiff would be considered the operator of a vehicle. It will be noted that the city ordinance in effect at the time of the accident included everything on wheels, except street cars and baby carriages, and we therefore find and believe that the same would include a coaster wagon, which was being used and operated by the plaintiff for his own transportation. *54
We therefore find and believe that the trial court charged the jury correctly on that proposition of law and fully protected the rights of the plaintiff by admitting in evidence the various sections of the ordinance pertaining to the rights of pedestrians at intersections.
There being no other errors claimed by the plaintiff in error, we find upon a full examination of the entire record and the court's charge that both parties had a fair and impartial trial, and that the jury were fully warranted in the verdict rendered.
It therefore follows that the judgment in this case will be, and the same hereby is, affirmed.
Judgment affirmed.
SHERICK, J., and WASHBURN, J. (of the Ninth Appellate District), concur.
