Volume 15 — Ohio Appellate Reports

Error: Court of Appeals for Cuyahoga county. This cause was instituted in the municipal court of Cleveland by defendant in error against the plaintiff in error for non-delivery of goods, based upon two bills of lading issued by plaintiff in error covering a shipment of merchandise by F. Silberstein & Son, consigned to defendant in error.

<p>Landlord and tenant — Leases—Option to purchase renewed, when — Option not signed by owner’s wife — Specific performance by purchaser.</p> <p>1. AVhere a lease is given containing an option to purchase, the renewal of the lease at its expiration implies an intent to renew the option to purchase.</p> <p>2. AVhere an option to purchase real property is not signed by the wife of the owner of the property, and the purchaser asks for a conveyance pursuant to the option, subject to the wife’s dower, he is entitled to a decree for specific performance.</p>

<p>Appeal: Court of Appeals for Lucas county.</p>

<p>Error: Court of Appeals for Cuyahoga county.</p>

<p>Workmen’s compensation — Appeal to common pleas court — Section 1465-90, General Code — Errors reviewable in court of appeals — Award by jury — Compensation for partial disability — Section 1465-80, General Code — Loss of use or severance of arm.</p> <p>1. Only such, errors in the trial of an appeal taken under the provisions of Section 1465-90, General Code, as manifestly affect the substantial rights of the party complaining will warrant a reviewing court in reversing the award of the jury.</p> <p>2. When t'he injury complained of in such proceeding consists in the loss of the use of some member. of the body, which member is specified in Section 1465-80, the jury should not award a greater sum than the amount fixed in that section for the loss of such member, unless it is shown that such injury impairs the ability of the complainant to earn a living to a greater degree than would have resulted from the loss of such member by severance from the body. Ordinarily in such cases a lesser amount should be allowed, as the loss of the use of an arm is not equivalent to a loss of the arm.</p>

<p>Waters and watercowses — Navigable bay or harbor on Lake Erie —Hunting and trapping wild game — Exclusive right in land owner — Right of public to navigate and fish.</p> <p>The owner of land covered by the water of a navigable, landlocked bay or harbor, connected with Lake Erie, holding title derived from the state of Connecticut under its grant made in 1792, has, as an incident of title, the exclusive right of hunting and shooting wild game and trapping wild animals on the premises, although the public have the right to navigate the waters and to fish therein-.</p>

<p>Wills — Execution—Signing at end — Dispositive slip attached to document — Original will invalidated or codicil unexecuted— Question for jury — Time of attaching slip.</p> <p>1. A will written on two of the four pages of a double sheet of legal cap paper, signed at the end and complete in itself, excepting that a small piece of note paper containing a dis-positive clause and not signed was attached to the outside of the will, is not .properly signed at the end as required by statute, if the slip of paper was written and attached before the will was signed, but if written subsequently to the execution of the will, such slip of paper amounts to nothing more than an unexecuted codicil.</p> <p>2. In such case the question as to the time when the attached paper was written is for the jury and it is error for the court to direct the jury to return a verdict setting aside the will.</p>

<p>Charge to jury — Prejudicial error — Failure to present defendant’s theory of case — Negligence.</p> <p>It is prejudicial error for the trial court, in his charge to the jury, to repeatedly set forth the theory of the case as promulgated by the plaintiff and omit entirely to state the theory of the defendant, especially where at the close of such charge the judge’s attention is called to the fact and he refuses upon request of defendant’s counsel to charge defendant’s theory of the case and his defense.</p>

<p>Banks and hanking — Transmission of foreign exchange — War conditions prevent delivery — Depreciation of foreign currency ■ — Amount hank to return to sender.</p> <p>Where a bank received $200 for a remittance of 1,080 leva to Bulgaria through the postal service, and t'he delivery of the money could not he made because of a state of war existing in Europe, the remaining duty of the bank was to return to the plaintiff 1,080 leva or their equivalent in the currency of the United States at the time when the bank in the exercise of due diligence should have learned and reported its inability to deliver.</p>

<p>Error : Court of Appeals for Summit county.</p> <p>On Motion to dismiss petition in error.</p>

<p>Error: Court of Appeals for Pickaway county.</p>

<p>Specific performance — Written contract to sell realty — Partial consideration paid — Agreement not consummated within stipulated time — Extension or waiver of performance.</p> <p>Specific performance for the sale of real property will be denied in an action brought upon a written contract specifying the consideration to .be paid and that the agreement was to be consummated on or before sixty days from its date, although a part of the purchase price was paid at the time the contract was entered into, where the contract was not consummated within the sixty-day period and there was no memorandum in writing signed by the parties agreeing to extend the time of performance and no allegation or proof that might be considered a waiver of the performance of the contract on or before the time specified for performance.</p>

<p>Appeal: Court of Appeals for Cuyahoga county.</p>

<p>Negligence — Venue of action — Section 6308, General Gode — Automobiles — Death by non-resident defendant — Personal representative to sue, where.</p> <p>An administrator of a deceased person, whose death was caused by being struck by a motor vehicle, cannot, by virtue of Section 6308, General Code, maintain .an action for such death in the county in which the deceased person resided and require the defendant to answer to a summons transmitted to another county in which the defendant resides.</p>

<p>Error : Court of Appeals for Cuyahoga county.</p>

<p>Negligence — Automobiles—Proper control of ear — Darle night and dimmed headlights — Section IfJilf-l, General Code — Exercise of care — Failure to carry lights — Driving cattle on highway at night — Not negligence per se.</p> <p>1. If the night is so dark that the operator of an automobile must depend upon the light from his machine to see the condition of the highway, he is operating his machine negligently unless it is under such control that he can stop or' avoid an obstruction, or traffic thereon, within the range of the light produced by the lamps on his automobile.</p> <p>2. The operator of an automobile is not excused from the requirements of the above principle when the lights on his machine are dimmed while passing other machines under the provision of Section 12614-1, General Code (107 O. L., 540).</p> <p>3. In the absence of a statutory requirement it is not negligence per se for a person driving cattle on the public highway in the night season to fail to carry lights, but it is a fact for the jury to determine under the evidence whether a person so doing is in the exercise of ordinary care.</p>

<p>Husband and wife — Liability of husband — Medical services furnished wife — Burden of proof — Failure to provide and justification for living separate.</p> <p>In an action to recover íot medical services furnished by plaintiff to defendant’s wife, who at the time such services were rendered was living separate from her husband, the burden Is upon the plaintiff to prove not only that defendant failed to provide for his wife’s support but also that the wife was justified in abandoning defendant because of his misconduct, and a failure of such proof will defeat recovery.</p>

<p>Municipal corporations — Home rule — Section S, Article XVIII, Constitution — Regulating places selling leverages — Local police regulations — Constitutional law.</p> <p>1. A municipal corporation has power to pass an ordinance regulating places where beverages are sold.</p> <p>2. Section 3, Article XVIII of the Constitution of Ohio, is self-executing.</p> <p>3. The doctrine of the first paragraph of the syllabus of State, ex rel. Toledo, v. Lynch, Auditor, 88 Ohio St., 71, has been impliedly overruled by subsequent opinions of the supreme court.</p>

<p>Appeal: Court of Appeals for Trumbull county.</p>

<p>Error: Court of Appeals for Summit county.</p>

<p>Criminal law — Statement "to jury — Conviction' of one jointly indicted — Error cured by charge, when — Evidence—Confession by one jointly indicted — Charge to jury — Counsel fails to prevent omission — -Duress to secure confession. .</p> <p>1. • Upon, the .trial of one charged with a crime it is error for the prosecuting attorney, in his opening statement, to. state that another who had been jointly indicted with defendant had already been tried and found guilty of the same offense, 'but such error is cured by the court’s instruction to the jury eliminating from their minds as far as possible ■ the effect of the statement.</p> <p>2; It is not error in a criminal prosecution to admit in evidence an alleged confession signed by a co-indictee of defendant, where the evidence shows that the statement was read to the defendant, that he admitted that it was true in almost '■ every particular, and that he voluntarily discussed it with • ■'detectives who testified to examining him, it being a link in the conversation between defendant and such detectives. 3. The court, at the close of its charge to the jury, having asked counsel for defendant whether there was any omission in the charge in behalf of the defense, and counsel having replied that there was not, such counsel cannot later complain of an alleged error on the part of the court in failing to charge the jury as to the effect of duress used upon the defendant to procure a confession.</p>

<p>Negotiable instruments — Defense—Consideration a gambling transaction — Stock margins — Section 5966, General Codi (108 O. L., pt. 1, 218) — Proviso—Broker of stock exchange— Evidence of intent to gamble.</p> <p>In an action by the payee against the maker of a promissory note given in payment of stock purchased by defendant, the defense being that the note was given as consideration for money lost at gambling in the purchase and sale of stocks on margin, it is error for the trial court at the close of all the evidence to refuse to sustain a motion for a judgment for the plaintiff, where it clearly appears that the dealings between the parties come within the proviso of Section 5966, General Code, excluding certain transactions from the operation of Sections 5966 and 5969, General Code, and where there is an utter lack of evidence of mutuality of intent between the parties to conduct a gaming transaction, or evidence that the plaintiff had knowledge of any such intent on the part of the defendant.</p>

<p>Corporations — Trust not created, when — Advancement of money —Agreement to assume obligation to. transfer stock — Foreign corporations — Charter forfeited in foreign state — Bights of stockholders and creditors — Ohio laws inapplicable, when —Settlement of dissolved domestic corporations — Sections 8742, 11968 and 11969, General Code.</p> <p>1. An agreement, whereby, in consideration of the advancement by A of certain sums of money to the R Co., the S Co. is to transfer to A a specific number of shares of corporate stock of the R Co., with the understanding that A is to assume the obligation of the S Co. to the M Co. to deliver to . the M Co. 1,500 shares of capital stock of the R Co., as per the terms of a contract between the S Co. and the M Co., does not create a trust.</p> <p>2. After a foreign corporation has lost its corporate existence ■ under the laws of the state creating it and has no power to . sue or be sued, t'he stockholders and creditors of such defunct foreign corporation have no rights under Sections 8742, 11968 and 11969, General Code, providing for the settlement of affairs of dissolved domestic corporations.</p>

<p>In Mandamus: Court of Appeals for Cuyahoga county.</p>

<p>Appeal: Court of Appeals for Hamilton county.</p>

<p>Appeal: Court of Appeals for Jjueas county.</p>

<p>Error: Court of Appeals for Knox county.</p>

<p>Workmen’s compensation — Civil liability of employer — Defective guard upon wood-cutting machine — Section 1027, General Code.</p> <p>Where an employer furnishes a guard for wood-cutting machinery and such guard has become to the knowledge of both the employer and employe temporarily out of order and incapable of performing its functions, and such deEeet is the proximate cause of an injury sustained by the employe, the employer is guilty of a failure to comply with the lawful requirement contained in paragraph 7 of Section 1027, General Code, requiring employers to guard all wood-cutting machinery.</p>

<p>Error: Court of Appeals for Greene county.</p>

<p>Insolvent debtors — Conveyance to preferred creditor valid, .when —Knoioledge by grantee — Deed by husband to wife — Bona fldes of transaction — Section 11105, General Code.</p> <p>1. A'conveyance by a debtor to a creditor in payment of a valid " claim is not invalidated by the fact that it was made with intent to delay, hinder or defraud other creditors, where, such intent was not known to or in any way participated in by the vendee.</p> <p>2. A conveyance by á husband to his wife, in payment of a' debt owing to the wife, may excite suspicion and become the subject of scrutiny where there are other creditors than the wife at the time the transfer is made, but if made in good faith in payment of a bona fide indebtedness then existing, and the excess in the value of the property over her claim is not such as to charge her with notice of a fraudulent transfer on the part of the husband, no presumption of fraud will be inferred on account of the. relationship.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Landlord and tenant — Fixtures—Right to remove under- new lease — Notice and knowledge by'purchaser of fee — Corn crib. tenant house and hay barn.' ■</p> <p>1. A tenant who during his term purchases agricultural'fixtures for his own convenience, and at his-own expense,'and places the same upon the property with the intention of removing-them during such term, does not. by .entering into , a new lease! wherein he agrees to take good care of . all buildings and improvements on "the farm, or which'may., be ,placed thereon during the term of the lease! losé his right to remove such fixtures during the term ■ of the new' léase.</p> <p>2. A purchaser of Teal estate in .the possession óf a' tenant is’ chargeable not only with the knowledge of the--latter’s rights, but also of ■ all facts connected . therewith which a reasonable inquiry .would have disclosed.</p>

<p>Act of God — Flood of 191S — Damages to land by overflow of stream — Verdict—Special findings control over general verdict, when — Section 11464, General Code.</p> <p>1. In an action for damages to plaintiffs land from the overflow of a stream, alleged to have been caused by the building of piers for a bridge, testimony to the effect that the damage occurred during an unprecedented flood denotes that the overflow was an act of God for which no recovery in damages can be had.</p> <p>2. Where special findings of fact made in such' a case are to the effect that the flood was unprecedented and that there had been no overflow of plaintiff’s land prior to that time, and these findings are clearly supported by the evidence, but a verdict has been returned awarding damages because of such overflow, the court is justified in disregarding the verdict on the ground of inconsistency and may grant judgment for .the defendant.</p>

<p>Bailments-rContract for hire — Implied' warranty of fitness for use — Express warranty of construction and materials — Implied warranties enfo'rcihle, when.</p> <p>1. In a contract of bailment for hire, where the bailor knows the use to be made of the property, there is an implied warranty that the property shall be reasonably fit for such use.</p> <p>2. Where "in such a case there is a written contract, such warranty will be implied therein; unless the implied warranty be-incompatible with the express warranty, or unless by other language of the. contract there is a preclusion of such implied warranty.</p>

<p>Malicious prosecution — Evidence—Oral testimony to prove discharge of plaintiff — Advice of counsel to establish absence of malice — Charge to jury — Limiting malice to institution of criminal prosecution — Request for special findings by jury.</p> <p>1. In an action to recover damages for malicious prosecution, arising out of the arrest of plaintiff before a justice of the peace, if the justice’s record offered in evidence is so ambiguous and uncertain that it fails to show clearly that the prosecution was finally ended and the defendant discharged, oral testimony is admissible to establish such facts.</p> <p>2. The defendant in an action for malicious prosecution who has hot pleaded the advice of counsel as a defense may nevertheless offer evidence of such fact under a general denial, as tending to show absence of malice.</p> <p>3. When the issues in an action for malicious prosecution involve a charge of maiice covering the entire time a criminal prosecution is pending the trial judge may properly refuse to give an instruction to the jury which limits the inquiry on that subject to the time the criminal prosecution was instituted.</p> <p>4. As ultimate facts, only, are required to be submitted to a jury for a special finding, it is not error to decline to submit an inquiry in such a case on the subject of malice, limited to the time the criminal prosecution was instituted.</p>

<p>Antenuptial contracts — Burden to' sustain in action for dower— Dominant party to disclose property interest, when — Dower 1 not. barred if allowance inequitable, when.</p> <p>1. In an action by a widow ■ for an- award of dower in her deceased husband’s estate, which award it- is claimed is barred by an ante-nuptial agreement, the burden of upholding the contract is on the defense...</p> <p>2. Where such a contract is in contemplation, it is the duty of the dominant party to make a clear and complete disclosure oí all facts pertaining to the subject-matter of the contract and' thereby place full information as to the property rights and interests involved in possession of the opposite party.</p> <p>3. An ante-nuptial contract which fixes the interest of the wife in the thirty-one thousand ■ dollar estate of her husband at thirteen hundred dollars, and bars her from dower and all other rights in the estate, which was signed by the wife without disclosure as to the property rights and interests of the husband, at a time when she was forty-six and he sixty-four years of age, and with unquestioning confidence in his disposition to deal fairly with her, will not be upheld by the courts where the husband made no further provision during his lifetime for his wife.</p>

<p>Appeal: Court of Appeals for Hamilton county.</p>

<p>Bastardy — Discharge of accused by justice of peace — Validity of compromise by complainant — Accused to be bound over to common pleas court, when — Sections 12111 and 12111/, General Code.</p> <p>1. Upon the examination before the justice of the peace of the complainant in a bastardy proceeding, under Section 12111, General Code, the justice has no authority to discharge the accused on the ground that it appears from her examination that prior to the filing of her complaint she and the accused had entered into a private agreement by which the accused had paid complainant an amount equal to the amount that the common pleas court would charge the reputed father for maintenance of the child.</p> <p>2. If, in a bastardy proceeding, on the examination of the complainant, as provided by Section 12111, General Code, she testifies that the accused is the father of her bastard child, the justice must bind the accused to appear at the next term of the court of common pleas of the county, unless a compromise is agreed upon and bond given as required by Section 12114, General Code.</p>

<p>Descent and distribution — Wife dies testate, without children— Husband declines to take under will — Share of husband in personalty — Sections 8592 and 10511, General Code.</p> <p>1. Under the Ohio statutes provision is made for a widow or widower out of the estate of the deceased consort, notwithstanding the estate has been otherwise disposed of by will.</p> <p>2. A widower, electing not to take under the will of his wife who died testate, but leaving no children or their legal representatives, is entitled to one-half of the first four hundred dollars and one-third of the remainder of the personal property belonging to the estate of his wife.</p>

<p>Municipal corporations — Ordinance for construction of sidewalk —Injunction does not lie, when — Resolution granting use of street — Not a vacation or grant to railway, when.</p> <p>1. A municipal corporation having passed an ordinance in proper and legal form under favor of Section 3853, General Code, for the construction of a sidewalk by the abutting property owners along a certain street, a suit to enjoin the city from proceeding under the ordinance with the construction of the sidewalk will be dismissed where the passing of the ordinance is the only step taken by the city at the time the suit Is brought.</p> <p>2. A resolution passed by a village council providing that for certain consideration a railway company should have the use and occupation of a specified street is neither a grant to the company of the land within the bounds of the street nor a vacation of the street, but at most is a permission to the company to occupy the street for railway purposes.</p>

<p>Error*. Court of Appeals for Fairfiéld county.</p>

<p>Pleading — Motion to strike from, files — Petition frivolous and a Sham.</p> <p>It is error for the trial court to grant a motion to strike a petition from the files where the motion is made on the ground that the petition is “frivolous and a sham, and on its face shows that it is insufficient, and that plaintiff has no cause of action.” Such motion will not take the place of a demurrer.</p>

<p>Divorce — Jurisdiction—Plaintiff-wife nonresident, but defendant resident — Section 11980, General Code — “Residence” and “domicile” construed — Domicile of husband not that of wife, when.</p> <p>1. The courts o£ this state are without jurisdiction to hear an action for divorce where the plaintiff has always lived in a foreign jurisdiction although her husband’s domicile has been in the state for several years.</p> <p>2. The word “residence,” as used in Section 11980, General Code, providing thát in a divorce case the plaintiff must have been a resident of the state at least one year before filing the petition, is not synonymous with the word “domicile.”</p> <p>S. The rule that the domicile of the husband is that of the wife is inapplicable to a divorce proceeding under the statutes of this state.</p>

<p>Error: Court of Appeals for Coshocton county.</p>

<p>Error: Court of Appeals for Cuyahoga county.</p>

<p>In Quo Warranto: Court of Appeals for Tuscarawas county.</p>

<p>Error : Court of Appeals for Butler county.</p>

<p>Appeal : Court of Appeals for Butler county. -</p>

<p>Juvenile court — Validity of bond — Guaranteeing payments for support of children.</p> <p>A bond given by a parent to secure compliance with an order oE the juvenile court, fixing the amount to be contributed for support of his minor children, and accepted as a condition of the parent’s dismissal from a criminal proceeding in such court for non-support of the children, is not contrary to public policy, and in case of default of the principal may be enforced against the surety.</p>

<p>Appeal: Court of Appeals for Butler county.</p>

<p>Wills — Revocation not effective, when — Concurrence of intention to revolee and act of revocation.</p> <p>The testatrix executed a will which she left with her attorney for safekeeping. She afterward went to a hospital, and before submitting to an operation executed a paper in due form directing her attorney to “dispose” of her will for the reason that a change she desired to make had not been made. This paper she gave to her physician, who, after her recovery, handed it back to her. Some time later she called upon her attorney to make the desired change in her will. He was busy and it was arranged that she should call again on another day. Before doing so she died, and her attorney, who had never been told of her written direction to him to destroy her will, found it among her other papers.</p> <p>Held: That the written direction to her attorney was not effective, under the circumstances, to revoke her will, and she died testate.</p>

<p>Appeal : Court of Appeals for Vinton county.</p>

<p>Error: Court of Appeals for Clinton county,</p>

<p>Error : Court of Appeal® for Miami county.</p>

<p>Error: Court of Appeals for Cuyahoga county.</p>

<p>Negligence — Assumption of risk — Knowledge, not acts, essential —Defense not avoided by reply, when — Employe under employer’s orders — Risks assumed in interstate commerce— Extraordinary and ordinary risks — Evidence—Failure to call employe as witness — Right to explain absence.</p> <p>1. Assumption of risk sounds in contract, and depends not upon the acts but the knowledge of the employe.</p> <p>2. An answer pleading assumption of risk is not avoided by a reply that the employe was acting under the direction and instruction of his employer. To avoid such defense the employe must plead and prove that the employer by peremptory orders caused the employe tó yield his own judgment to that of the employer and enter upon the work notwithstanding the known danger, or that the work at which he was injured was so far outside his regular employment that the hazards thereof were not within either his actual or constructive knowledge.</p> <p>3. An employe engaged in interstate transportation assumes the extraordinary as well as the ordinary risks of his employment. In such case he assumes the ordinary risk whether he is actually aware of it or not, but he assumes the extraordinary risk only when actually aware of it or when.it is so obvious that an ordinarily prudent person would both have observed and appreciated it.</p> <p>4. An extraordinary risk is one which might be obviated by the employer’s exercise of reasonable care.</p> <p>5. Where a party fails to call an employe as a witness, he ■ ■ should be permitted to account for the absence of such wit- ■ ness and thus rebut the inference which the jury would be justified in drawing from his failing to call such witness.</p>

<p>Criminal law — Search and seizure without warrant — Evidence— Property seized admissible, when — Procedure to present valid objection — Proceeding for return of property before trial— Intoxicating liquors.</p> <p>An accused in a criminal case, in order to make a valid objection to the offering in evidence of property taken on search and seizure without warrant, must, if the facts are known, present a motion or a petition before trial .for the return of such property. In such case a general objection to the evidence when offered on trial is not sufficient.</p>

<p>Error: Court of Appeals for Cuyahoga county.</p>

<p>Error: Court of Appeals for Wayne county.</p>

<p>Error: Court of Appeals for Franklin county.</p>

<p>Municipal corporations — License to operate motor bus — Revocation not taking property without due process — Exclusion of busses from streets after licenses granted — Ordinance to regulate and control motor busses — Director of public safety may establish routes, etc,, when — Constitutional law.</p> <p>1. The holder of a license, for which he has paid the fee fixed by ordinance, entitling him to operate a motor bus in a city for a fixed period, carrying passengers for hire, does not have such a vested right as to make a revocation of the license by the city a taking of property without due process of law.</p> <p>2. A city in the exercise of a sound discretion may by a uniform general order exclude motor busses transporting passengers for hire from operating on the streets of a limited congested area, even though the licenses which have been issued authorize the licensees to operate on such streets.</p> <p>3. Where a general city ordinance for the regulation and control of motor busses authorizes the director of public safety, in considering applications for licenses, to exclude bus service from certain streets, in his discretion, and requires the licensee to comply with all regulations with respect to routes as the same may be reasonably established from time to time by the director of public safety, such officer has authority by a general and uniform order and in the exercise of a reasonable discretion to exclude busses from specified streets in a limited congested area, even though the licenses authorized the operation of such busses on those streets.</p>

<p>Error: Court of Appeals for Wayne county.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Appeal: Court of Appeals for Cuyahoga county.</p>

<p>Negligence — Automobile collision — Joint enterprise and imputed negligence — Contributory negligence by guest of driver of automobile — Charge to jury.</p> <p>The owner of an automobile and a number of other persons arranged to go together to a certain point for the purpose of hunting frogs. Pursuant to the arrangement they began their journey, the owner of the car exclusively driving and controlling it. While on the way, one of the occupants, who was sitting in the front seat with the driver, received an injury by reason of collision with another automobile. There was no understanding that any of the occupants of the car, other than the owner and driver, should have any control over the car, or over the owner of the cár in driving it. The occupant so injured brought suit against the owner of the other automobile, for injuries resulting from the collision. One of the defenses was contributory negligence:</p> <p>Held: That the facts above recited concerning plaintiff’s relationship to the automobile in which he was riding, and to the owner and driver thereof, have no tendency to prove that at the time plaintiff was injured he and the owner and driver of the car were engaged in a joint enterprise in the driving of the car, and that it was prejudicial error for the trial court to charge the jury that plaintiff was guilty of contributory negligence if the negligence of the driver of the car was a proximate and concurring cause Of plaintiff’s injuries.</p>

<p>Negligence — Automobile at railway crossing — Contributory neg- ' ligenee — Failure to loolc.</p> <p>The fact that the driver of an automobile failed to look for approaching cars before crossing a railway track cannot, in itself, be said in every case to be contributory negligence as a matter of law.</p>

<p>Error: Court of Appeals for Butler county.</p>