Epitomized Opinion

Samuel Schwartz brought suit against the Scioto Valley Railway and Power Company in an effort to recover damages for an injury resulting out of a collision with a traction car of the Railway Co. and a tractor owned and operated by Schwartz at the occurence of the accident. Schwartz alleged negligence on part of the Traction Co. and his allegations consist of:

1. Defective private crossing.

2. Negligence in operating its cars.

3. Negligence of operators of the traction car in failing to stop its car after such agents knew or should have known that tractor was stalled upon the tracks. The Railway Co. set up contributory negligence of Scwartz as a de-fence, and the case went to the jury, which returned a verdict for Schwartz for $2,064.

Error was prosecuted to the Court of Appeals by the Traction Co., and it held:

1. Whether crossing was defective, was issue for the jury to consider.

2. Traction Company owed duty to operate with due care under circumstances; requiring motormen to keep a reasonable lookout for persons who might be using the private crossing, and it was the duty of the person in charge of car to use ordinary care to stop the car or to otherwise avoid the injury.

3. Questions of contributory negligence are for the jury to consider.

Finding no prejudicial error the judgment was affirmed.