On August 16, 1920, an automobile in which Charles Napier, husband of Bessie Napier, was riding was struck by an interurban car. The ear was owned by Napier and driven by his son, Orris, both of whom were instantly killed. Bessie Napier, as administratrix of her husband’s estate, brought action in the District Court to recover damages for the wrongful death of her husband, which she averred in her petition was caused by the negligence of the Northwestern Ohio Ry. & Power Co. The answer of the Railway Co. denied negligence and alleged that the accident occured solely because the occupants of the automobile did not stop, look, or listen. A reply denied negligence on part of Charles and Orris Napier. A verdict was returned in favor of the Railway Co.
Error was prosecuted to the Circuit Court of Appeals and Napier contended that the Railway Co. had negligently allowed the growth of shrubbery and weeds close to the tracks so that it obstructed the view of its right of way, making it impossible for persons approaching the crossing to see the car coming in time to avoid a collision.
The circuit court of appeals held:
1.Charge of district court stating that the “Company is not responsible for the bushes or trees or obstructions which grow up or are nut upon its own right of way, but upon lands of others,” was erroneous.
. 2. ^"Charge of the court to the effect that greater care devolved upon the decedent because of the growth of bushes in the right of way, and refusal to charge that the Railway Co. should have exercised a greater degree of care on nearing the crossing, was prejudical to the rights of Napier.
Judgment of district court reversed and case remanded.