The plaintiff, John L. Renner, was driving a team of mules hitched to a platform wagon out of Jane street into Sixth street, in the city of Cincinnati, and while attemping to cross over to the south-side of Sixth street his wagon-was struck near the front wheel by a west bound- ear of the defendant company, whereby he was injured.
He himselftestifies that when the mules were within two feet of the west bound track-helooked in the direction whence the car came, and, although he had a clear view of two or three hundred • feet,-he saw nocat; that he attempted to -cross and-when his mules reached .the east bound track he heárd the ear, which was then about five feet from him.
If he looked for the first time when he says he did he must have have seen the car, for it is incredible that the car traveled two hundred feet while his team was walking twelve or fifteen feet, unless the ear was running at the rate of fifty or sixty miles an hour, which is not shown by any evidence. His inattention, recklessness, or incredibility appears from his statement that he did not discover the ear until within five feet .of him. If he looked to the front all the time, as one of his own witnesses testified, he could, without turning his head, have seen the approaching car, not only five feet away, but twenty-five feet and possibly fifty feet. While there is no absolute rule of law which required him to look in both directions for an approaching car, yet he could not close his eyes to his surroundings and be held blameless for an accident resulting therefrom. He either saw the car approaching before entering upon the track and assumed a risk that an ordinarily prudent person would not assume, or heedlessly attempted to cross without any effort to ascertain whether a oar was coming. The other testimony fixes the distance between the car and the wagon when plaintiff attempted to cross at twenty-five to one hundred feet. The jury must have adopted the testimony of the plaintiff that there was no car in sight when he started over the track; but this statement is not supported by any other evidence, and is wholly incredible.
The special charge requested by the defendant, and refused by the court, assumes that the failure to look when about to cross a street railway is negligence per se; but the rule of law applicable to steam railroad crossings does not govern at street railroad crossings. Cin. St. Ry. Co. v. Snell, 54 O. S., 197.
There was no error in refusing such instruction. That part of the definition of preponderance of evidence quoted in the brief of counsel for the plaintiff in error, is faulty, but cured by. the next paragraph.
The other alleged errors are not likely to occur in a subsequent trial, and it is unnecessary to here consider them further than, to shy- that we deem them harmless. . . .
;,..._-.The. judgment .will, be .reversed, because not sustained by, sufficient evidence, and the cause remanded for a new trial.