Hamilton County. 66 [27 N. E. Rep. 94]; Bank of Marysville v. Brewing Co. 50 Ohio St. 151 [33 N. E. Rep. 1054; 40 Am. St. Rep. 660]. A decree may be entered in accordance with the above find. ing. OPINION ON APPLICATION FOR A REHEARING. On application for leave to reargue this cause our attention is directed to the testimony of Mr. George Schmidt, the president of the bank. While it is true that checks coming through the clearing house may be returned at any time before 1 o'clock on Saturday and 4 o'clock on other days, and final payment made at that time, yet on Saturday, November 9, the checks were entered in the account about 11 o'clock, and payment became absolute at 1 o'clock, not because of deposits made on that day, but because there was a balance in the account carried over from the preceding day sufficient to pay the checks except the comparatively small sum of $70.09. This particular fund could not therefore be traced by the plaintiff as in the possession of the bank after the checks were charged to the account. Application denied. Smith and Swing, JJ., concur. MUNICIPAL CORPORATIONS. [Hamilton (1st) Circuit Court, March, 1910.] Giffen, Smith and Swing, JJ. *CLARA MILDNER AND BENEDICT KEETI V. CINCINNATI. FORBIDDING DRY CLEANING ESTABLISHMENTS ONLY TO USE GASOLINE IN MUNICIPALITIES IS INVALID REGULATION. An ordinance forbidding dry cleaning establishments only from using gasoline within municipal limits is unreasonable against a certain trade or business; if the business is carried on in such manner as to become a nuisance, or is dangerous, offensive or unwholesome as to cause injury or annoyance it is subject to regulation under Gen. Code 3650. ERROR to common pleas court. *Reversing, Mildner v. Cincinnati, 20 Dec. 61; affirmed, no op., 56 Bull. 338. Mildner v. Cincinnati. David Davis, for plaintiff in error. GIFFEN, P. J. The plaintiffs in error were convicted and sentenced to pay a fine of $50 each under an ordinance "To regulate the use of gasoline, naptha, benzole and other light petroleums, and coal tar productions in the dry-cleaning business in the city of Cincinnati, Ohio." While the provisions of the ordinance are apparently intended to regulate the use of gasoline in the dry-cleaning business, they in effect prohibit such business within the city limits; but even this may be done, if the business of dry-cleaning is a nuisance or so dangerous, offensive, or unwholesome as to cause injury or annoyance. Gen. Code 3650; White v. Kent, 11 Ohio St. 550; Hays v. St. Marys, 55 Ohio, St. 197 [44 N. E. Rep. 924]. The manifest purpose of the council in passing the ordi-' nance was to prevent injury to life and property from the use of gasoline or other inflammable material. There is no other element of danger in the business of dry-cleaning; and yet it is notorious that this same element of danger is present in other trades and businesses which this ordinance does not pretend to regulate. Gasoline stored and used for the purpose of cleaning articles made of iron or steel is just as dangerous as the same quantity of gasoline stored and used for the purpose of cleaning cloth or clothing. At least there is nothing in the record showing any distinction. The ordinance is unreasonable, not because gasoline is harmless, nor because of any want of power in council to regulate its use, but because it unjustly discrim-inates against a certain trade or business. For this reason the ordinance is void and the judgment of the court of common pleas will be reversed and the cause remanded to that court with instructions to reverse the judgment of the police court of Cincinnati. Smith and Swing, JJ., concur. Hamilton County. AUTOMOBILES-STREET RAILWAYS. [Hamilton (1st) Circuit Court, April 9, June 10, 1910.], Giffen, Smith and Swing, JJ. OHIO TRACTION Co. v. JENNINGS MILLER. OHIO TRACTION Co. v. LOUISE BREITHOLLE. COLLISION BETWEEN AUTOMOBILE AND STREET CAR CAUSED BY UNEXPECTED CHANGE IN COURSE OF THE FORMER NOT TO BE ANTICIPATED BY MOTORMAN, NOT GROUND FOR RECOVERY. Conflicting testimony tending to show that an automobile attempting to pass between came into collision almost simultaneously with two cars belonging to different companies and approaching on parallel tracks, and injuring a passenger on the car probably last to strike the automobile by being burned by an explosion of the gasoline tank thereon, is not sufficient to warrant a verdict in favor of such passenger, the unexpected change of course by the automobile not being one to be anticipated and guarded against by the motorman. OHIO TRACTION Co. v. MILLER. ERROR to common pleas court. George H. Warrington, for plaintiff in error. GIFFEN, P. J. The plaintiff in the original action was a passenger on a Millcreek Valley car owned and operated by the defendant, the Ohio Traction Company, and was burned and otherwise injured by the explosion of gasoline on an automobile which collided with a Vine-Norwood car running south on Vine street hill while the Millcreek Valley car was running north, and it is claimed in the petition that the defendant, knowing that the collision had occurred, and that the automobile was on the northbound track, negligently and willfully ran its car against and upon the automobile. The plaintiff's testimony and that of two of his witnesses, at least, support his theory of the case; but one of his witnesses, Miss Cobham, is uncertain whether the automobile collided first with the Millcreek Valley car or with the Vine Traction Co. v. Miller. Norwood car. The great weight of the testimony, however, shows that the collision, if any, between the automobile and the Millcreek Valley car was almost the same instant it struck the Vine-Norwood car. It is not unexpected nor unusual that accounts of an accident of this character given by eye-witnesses vary as to time, distance and other details, especially when observed under conditions of great excitement and confusion; and we conclude from all the evidence that the plaintiff is mistaken in his recollection and recital of the facts. It is rightly claimed by counsel that the defendant company was bound to exercise, for the protection of its passengers, the highest degree of care consistent with the practical operation of its road; but a careful reading of the testimony fails to disclose any violation of that duty. The testimony shows that there was room for the automobile to pass the Millcreek Valley car on the left-hand or the Vine-Norwood car on the right-hand side of the street, and that there was no other vehicle or obstruction in the way. There being no necessity for the driver of the automobile to pass around the left side and in front of the Vine-Norwood car, the motorman on the Millcreek Valley car had no reason to anticipate such attempt; but on the contrary might well assume that he would take one of the two ways open for such travel. After the collision with the Vine-Norwood car, the explosion followed so soon and the flames from the burning gasoline so completely surrounded the motorman and his car that he was powerless to avoid the consequences. The instinct of self-preservation would tend to restrain the motorman from doing that which he is charged in the petition with doing, and the manifest weight of the testimony exonerates him. The judgment will be reversed for error in overruling the motion for a new trial upon the ground that the verdict is not sustained by sufficient evidence, and the cause remanded for a new trial. Smith and Swing, JJ., concur. Hamilton County. OHIO TRACTION Co. v. BREITHOLLE. ERROR to common pleas court. George H. Warrington, for plaintiff in error. S. A. West and Frazier & Hicks, for defendant in error. GIFFEN, P. J. The plaintiff below, Louise Breitholle, was a passenger on one of the cars of the defendant company, and after describing a collision between an automobile and a car operated by the Cincinnati Traction Company while both were descending Vine street hill, which as alleged left the automobile across the track upon which the defendant's car was ascending, and about 100 feet in front of the car, charges negligence as follows: "That after said automobile had been so thrown on and near the track upon which defendant's car was being run, all of which the defendant then and there had the means of knowing and did know, the defendant then and there carelessly and negligently failed and neglected to control and operate its said car so as to avoid coming in contact with the said automobile, but carelessly ran said car into said automobile." This is a clear cut charge of negligence concerning which there ought not to be much conflict of testimony, yet there is such conflict not only between the testimony offered by the plaintiff and that offered by the defendant, but also in the testimony of the witnesses on either side. Mrs. Fiscus, a witness called by the plaintiff, testified that while standing on the steps in front of her house on the east side of Vine street she saw the automobile collide with a Norwood car; that defendant's car was at the time about 75 feet south of the automobile, and continued slowly up the hill until stopped about 15 feet south of the automobile, from which the burning gasoline flowed down the hill and set fire to the car. This testimony does not support plaintiff's theory of the case, and is discredited by the testimony of her sister, who was next called by the plaintiff, and said that they were both in the house when the collision took place and when they came out the car was burning. |