#### Schnurr, Appellee, *v.*The Cincinnati Street Ry. Co., Appellant.

(Decided January 27, 1941.)

*Messrs. Harmon, Colston, Goldsmith S Hoadly, Mr. Henry B. Street*and *Mr. Harold K. Goldstein,*for appellee.

*Mr. Leo J. Brumleve,*for appellant.

Ross, J.

This is an appeal on questions of law from the Court of Common Pleas of Hamilton county.

The plaintiff recovered a verdict of $10,000 against the defendant. A number of errors are assigned by the defendant, none of which we find necessary to consider in view of our conclusion as to the merits of the case.

*226The facts are, as claimed or admitted by the plaintiff, that he, for reasons best known to himself, in company with another young man, crawled into the rear compartment óf a one-seated automobile. This compartment consisted of a portion of the vehicle designed for baggage or articles to be transported in the car. It was immediately beneath what is commonly called the “turtle back,” and was almost directly over the rear wheels of the car. It was obviously not designed for occupancy by passengers.

The plaintiff and his companion stretched out at full length in this baggage compartment, having raised the cover so that it was in an almost vertical position and fastened it in that position with a device designed to hold it up while articles were being placed in or removed from the compartment. The heads of these young men were towards the front of the automobile, resting against the support of the seat of the car, which was occupied by two other men.

About one a. m., the driver of the vehicle drove upon a street in the city of Cincinnati over which streetcars were operated, the tracks occupying the center of the street.

Both the streetcar and the automobile turned into the street at a distance of some quarter of a mile apart and from such point continued to approach each other. Plaintiff in his brief makes this statement:

“At the very moment that the automobile'was rounding Higbee street a dimly illuminated streetcar passed the Urwiler intersection on Harrison avenue, located more than a quarter of a mile away and proceeded westwardly down the straightaway hill directly towards the oncoming automobile.”

The astounding fact is that they continued to approach each other until they collided.

The photographs in evidence show that the left front corner of the street car was struck by the left front part of the automobile, which was crushed in by the *227force of the impact. One occupant in the front and one in the rear were killed.

There are certain inescapable inferences from these facts.

The plaintiff, when he crawled into the baggage compartment, placed himself in a position where he was wholly unable to contribute in the slightest degree to his own safety in case of any emergency arising in the operation of the vehicle. He placed entire confidence in the driver of the automobile. He was completely helpless. He had absolutely no warning of approaching danger. He could not see the approaching streetcar. Even though a city ordinance prohibited riding in any part of a vehicle not designed for passengers, and even though such conduct by the plaintiff could not be considered as the exercise of ordinary care for his own safety, we are still not required to consider this phase of the case, because of our conception of the whole circumstance.

It may not be amiss to state here, however, that in the same petition charging the defendant streetcar company with negligence, the plaintiff joined the estate of the driver of the vehicle, charging the decedent driver with wanton and wilful misconduct. The estate of the driver was dismissed from the case.

The plaintiff, in general, charges the defendant with negligence, in that the streetcar was operated at a speed of some forty miles an hour in a closely built-up section of the city and the gong on the streetcar was out of order and could not be rung, and in that the operator of the streetcar failed to give warning of its approach, failed to keep a lookout, failed to have it under control, and failed to avoid a collision as could have been done.

It is also alleged and claimed that all of these forms of negligence at least contributed to cause the plaintiff’s injuries.

*228Again, returning to our justifiable inferences from the facts, we are unable to so conclude.

The operator of the automobile knew that for some considerable distance, more than five hundred feet, he was driving his automobile down the track of the street railway company, over which at any time a streetcar might proceed toward him. He knew that the streetcar could not leave the track. He had ample room on the right side of the street to pass the streetcar. It was lighted dimly, but the street also was lighted. Certainly an object as large as a streetcar would be visible to the driver of an automobile for a considerable distance, from the automobile’s own lights if from no other source. In spite of the plain presence of an approaching streetcar over the tracks which the automobile was occupying, the operator of the automobile drove on directly toward it. What possible bearing, outside of the realm of conjecture and speculation, could the absence of a gong, or the speed of the streetcar have upon the cause of a collision under such circumstances? There was one cause of that collision and only one and that was the utter disregard of all care in the operation of the automobile — in driving it head on into a streetcar that had been visible for some time; in proceeding in a path which the driver knew must be followed by the streetcar; and in persisting in occupying that path with his vehicle. The sole proximate cause of the injuries to the plaintiff was, therefore, the negligence of the driver of the automobile.

It is our conclusion, therefore, that the trial court should have instructed a verdict for the defendant, and, as it failed to do so, we reverse the judgment of such court and here render the judgment for the defendant, which the trial court ought to have *rendered:*

*Judgment reversed and final judgment for appellant.*

Hamilton, P. J., and Matthews, J., concur.