CHARLESTON.

#### Charles G. White *v.*Monongahela Valley Traction Co.

Submitted February 20, 1923.

Decided March 18, 1924.

Former Case Controlling:

*This*ease is governed by *the*principles of law announced in tbe opinion this day handed down in the case of Maggie J. Blackwood v. Monongahela Valley Traction Company.

*10Error to Circuit Court, Marion County.

Action by Charles G. White against the Monongahela Valley Traction Company. Judgment for plaintiff, and defendant brings error. „ , , 7 ,r

, 7 ,r *Reversed and remanded.*

*Tusca Morris, Osman E. Swartz,*and *A. J. GoTborn,*for plaintiff in error.

*Raymond & Raymond*and *Shaw <& Shew,*for defendant in. error.

Litz, Judge:

This action grows out of a collision between the automobile of Maggie J. Blackwood, while driven by her husband, James F. Blackwood, and the street car and electric locomotive of defendant,, at the intersection of Euclid Street and East Park Avenue in the city of Fairmont. The plaintiff, who was riding in the automobile at the time of the accident, as the invited guest of James F. Blackwood, sustained serious injury. He recovered judgment against the defendant for $2500.00, predicated upon the alleged negligence of defendant’s servants in charge of the street car and locomotive, resulting in the said collision and injury to plaintiff. To that judgment defendant prosecutes this writ of error.

The material facts in relation to the collision are fully set out in an option handed down today in the case of *Maggie J. Blackwood*v. *Monongahela Valley Traction Company.*We held in that ease that a binding instruction directing a verdict for the plaintiff upon a finding of negligence against the defendant was improper as ignoring the defense of contributory negligence; and that an instruction tendered by defendant should have been given, which would have told the jury that the mere fact that the injury complained of was sustained while the automobile was being driven over defendant’s street car tracks raises no presumption of negligence against the defendant. Like rulings were made by the trial court in this case on similar instructions. For the reasons stated in the other case, we hold that these rulings were erroneous.

It was also held in the other case that, as the driver of the *11automobile bad stated that be observed tbe approach of tbe street ear in time to bave stopped and avoided entering upon tbe tracks in advance of it, tbe motorman of tbe street car was not negligent in failing to sound a warning of its approach. However, in this case, as it does not appear that tbe driver of tbe automobile knew of tbe approach of tbe street car in time to bave stopped and avoided entering upon tbe tracks in advance of tbe car, it may be that tbe ruling of tbe trial court on this question is right. But if tbe motorman on tbe locomotive was negligent, as we think be was, in failing to sound a warning, it does not seem that tbe motorman of tbe passenger ear, which was proceeding slowly and bad actually stopped before reaching tbe crossing, was guilty of negligence in failing to warn. Tbe fact that tbe brakes were not applied on tbe locomotive until after tbe collision is almost conclusive that tbe motorman was not keeping a proper lookout.

Deeming tbe other errors assigned without sufficient foundation, for tbe foregoing reasons we reverse tbe judgment of the circuit court, set aside tbe verdict of tbe jury and award plaintiff a new trial.

*Reversed and remanded.*