Citizens' Motor Car Co. v. Hamilton

The plaintiff, Hamilton, could and did pass in safety over the street railway in front of a moving car, and he was not negligent per se in thus crossing without first ascertaining whether an automobile or other vehicle was moving in the same direction with and on the other side of the street car at a dangerous and unlawful rate of speed. He had a right to assume that any such vehicle was running, if at all, at a lawful rate of speed.

When he reached the other side of the street railway he saw the automobile approaching at a dangerous and excessive rate of *382speed. Three alternatives were presented to hint: either to stand still, retreat in front of the moving street ear or attempt to pass beyond the automobile, any one and all of which were apparently dangerous, although had he remained standing he would probably have avoided injury.

In such a situation of peril the rule stated in the third proposition of the syllabus of the case of Penn. Railroad Co. v. Snyder, 55 O. S., 342, applies and the court so charged the jury; but it is claimed that the charge was not relevant to any issue tendered.

The plaintiff was required to exercise ordinary care, and the instruction given was merely a definition of ordinary care on the part of a plaintiff, who, without his fault, was in a situation of unusual peril. ITe had reasonable grounds for believing that the course pursued would be the safest, and should not be charged with the consequences of error of judgment resulting from the excitement and confusion of the moment. Railroad Co. v. Mowery, 36 O. S., 418; Pennsylvania Co. v. Langendorf, 48 O. S., 316.

The judgment should be affirmed.