CHILD STRUCK BY AUTOMOBILE.

Court of Appeals for Franklin County.

#### Edwin O. Decker v. Doris A. Mitchell By John Mitchell Her Next Friend.

Decided, February, 1919.

*Negligence*— -Child *Struck by Car Mid-way Between Street*Crossings— *In the Absence of an Ordinance to the Contrary Pedestrian May Use the Street at Other Points than Crossings*— Relative *Negligence of. Car Driver and Victim a Question for the Jury.*

1. For a pedestrian to attempt to cross the street at a point other than where there is a regular crossing for pedestrians is not negligence as a matter of law in the absence of an ordinance forbidding such use of the streets.

2. Whether reasonable care was used by a child ten years of age who was struck by an automobile while attempting to cross a street mid-way between crossings is a question for the jury; depending somewhat on the age, intelligence and experience of the one so injured.

3. While the driver of an automobile is bound to use special caution at street crossings to avoid striking pedestrians, he is bound at all times to keep within the speed limits and to use due care to prevent striking persons who may be in the street.

4. To admit testimony to the effect that school children were in the habit of taking a short cut across the street at the point where the accident complained of occurred is not prejudicial to one whose machine struck a child at that point, where the jury are charged that such testimony was without effect upon him unless the practice of children so to d-o had been brought to his knowledge.

*Clayton A. McCleary,*attorney for plaintiff in error.

*Taylor, Williams, Cole (& Harvey,*contra. ‘

Ferneding, J.

The original action in the court of common pleas ivas brought by Doris A. Mitchell by her next friend against Edwin O. Decker for injuries received in an automobile accident which occurred *559in East Eleventh avenue near the Ohio State Fair Grounds in the city of Columbus. The defendant was the owner of the automobile in which he was riding at the time of the accident. The car was being driven by the defendant’s son. The plaintiff at the time of the accident was between ten and eleven years of age. She approached Eleventh avenue, across vacant lots, and attempted to pass into Eleventh avenue at about the middle of the block and immediately in the rear of the street ear. After passing the street car and reaching a point some ten or twelve feet from the south rail of the north track she was struck by the defendant’s car and seriously injured. The negligence assigned in the petition was that the automobile was being operated at an excessive and unlawful rate of speed and that the driver of said automobile failed to use ordinary care to avoid the collision. It was claimed by the defendant that the plaintiff was negligent in attempting to cross the street at that particular place, it not being a regular street crossing; also that said plaintiff did not use proper caution to avoid the injury. There was a conflict of evidence as to the negligence of the defendant and as to the contributory negligence of the plaintiff. While the evidence on these subjects was conflicting we think these questions were properly submitted to the jury.

Counsel for plaintiff in error contend as a matter of law that the plaintiff below was guilty of contributory negligence because she undertook to cross Eleventh avenue at a point other than where there was a regular crossing for pedestrians. It does not appear that there was any traffic ordinance making it unlawful for pedestrians to cross a street in this section of Columbus at a point other than at regular crossings; consequently plaintiff was not guilty of any illegal act or chargeable with negligence *per se.*It therefore, became a question of reasonable care. This depended to some extent upon the age, intelligence and. experience of the plaintiff and was a question for the consideration of the jury, *Mill Co.*v. *Corrigan,*46 O. S. 288, *Railway Co.*v. *Mackay*53 O. S. 370; *Railway Co.*v. *Wright,*54 O. S. 101. The plaintiff, because of her tender years, is not chargeable with that same standard of care and caution as would be expected of a *560person of mature years. Many of the cases cited by counsel for plaintiff in error, therefore, are not applicable.

It is also contended that the driver of defendant’s car was not bound to contemplate that a pedestrian would be crossing a street between regular crossings and was therefore not bound to be on the lookout for such pedestrians. We think, however, that while the driver of an automobile would naturally be required to exercise a.greater degree of caution at a regular crossing than' at points between crossings, nevertheless it at all times became the duty of such driver to keep the speed of his ear between crossings within the legal limit and to use due care and caution to discover pedestrians, particularly children, who may be found using the street. This is a question of fact to be determined from all the evidence and circumstances of the case. There was evidence tending to prove the custom on the part of children and others in that neighborhood to cut across lots and over Eleventh avenue at the point of the accident. The trial court distinctly stated that this evidence would not affect the defendant unless it was shown that he had notice, and we think that the introduction of such evidence under the circumstances was not prejudicial.

The jury returned a verdict in favor of the .plaintiff in the sum of $4,500; this the trial court reduced to $2,900. We are not prepared to find from the record that the verdict was the result of passion and prejudice on the part of the jury, nor do we find that the verdict as reduced by the trial court is excessive. Finding no prejudicial error the judgment will be affirmed,

ICunkle, and Allread, JJ., concur,