Statement of the Case. at the intersection of a road known as Dorr street and a boulevard, a short distance outside the corporate limits of the city of Toledo. Plaintiff was seated on the right side, he being a guest of the owner and driver. There were also three persons in the rear seat. The top of the automobile was up, but the curtains were not on. At the close of the evidence adduced by the plaintiff the defendant moved the court for an order directing a verdict in favor of the defendant, which motion was renewed at the close of all the evidence. The motion in both instances was overruled. Before argument the court gave to the jury several instructions requested by counsel for the defendant, among which were the following: "7. If you find that the plaintiff was himself negligent in riding in the automobile driven by Riek, and permitting same to be operated, as you may find same was operated by Riek, and in remaining in same after observing Riek's manner of operation, and if you find that such negligence on the part of plaintiff proximately contributed to his injuries, your verdict must be for the defendant." "8. You are instructed that plaintiff could not ride in the automobile operated by Riek and sit in the front seat beside Riek and close his eyes and ears to all possible dangers and rely entirely upon Riek for plaintiff's safety, but that on the contrary, it was plaintiff's duty as much as it was Riek's to exercise such care as reasonably prudent men would exercise in such circumstances to observe and 'avoid such impending dangers as could be observed and avoided by the use of the senses of sight and hear Statement of the Case. ing,' and if you find that plaintiff failed to exercise such degree of care, and that such failure on his part proximately contributed to his injuries, your verdict must be for the defendant." "13. The fact, if you find it to be a fact, that the view of the plaintiff and the other occupants of the automobile up the street car tracks to the west was obscured wholly or partially as the automobile approached the tracks, would not relieve the plaintiff from the duty of exercising his senses of sight and hearing, to ascertain whether or not a car was approaching, but would, on the contrary, require him to exercise greater care in that respect, before proceeding to cross the car tracks." In the course of the general charge the court instructed the jury as follows: "If the accident was proximately caused by the negligence of the witness, Riek, who drove the automobile, the plaintiff cannot recover. If the neg ligence of Riek and the street car company concurred and acted together as you find from the evidence, then the negligence of the witness, Riek, would not be imputed to the plaintiff as contributory negligence of his own. But as you have already been instructed, the plaintiff was not exonerated from any duty at all by reason of the fact that he himself was not driving the machine." The trial resulted in a verdict for the defendant, upon which judgment was rendered in the court of common pleas. Upon a proceeding in error in the court of appeals said judgment was reversed, and to such judgment of reversal error is now prosecuted in this court. Opinion, per MATTHIAS, J. Messrs. Tracy, Chapman & Welles, for plaintiff in error. Mr. Charles H. Masters and Messrs. Kohn, Northup, Ritter & McMahon, for defendant in error. MATTHIAS, J. The pleadings in this case present the issues of negligence of the defendant and contributory negligence of the plaintiff. The record discloses the usual conflict of various witnesses upon these issues, there being a serious and wide difference as to the speed of the automobile and also as to the speed of the street car, the former varying from six to thirty-five miles per hour as it approached the intersection, and the latter seven to thirty-five miles per hour. This difference is illustrative of the conflict in the evidence upon material and important questions of fact which is characteristic of many cases, particularly those of the nature of the one under consideration. Counsel for the company contended before the court of appeals, and now contend, that even if any errors were committed by the trial court, they are unimportant and should not be given any consideration now for the reason that it appears from the entire record that the plaintiff should not recover, and, hence, that it was the duty of the trial court to direct a verdict for the defendant. Upon this contention we need only to say that we find the record discloses evidence upon the issues joined which required the submission of the case to the jury, under proper instructions by the court. Opinion, per MATTHIAS, J. The action of the trial court chiefly complained of by the plaintiff Mayers in the proceeding in error instituted by him in the court of appeals, and because of which a judgment of reversal was entered by that court, was the giving of several instructions before argument requested by the defendant, and also certain language used in the general charge which has been set out in the statement of facts. It has long been the settled law of this state that when one is injured by the wrongful act of another, without concurring negligence upon his own part or by some one who is under his direction or control, he is entitled to recover from him who caused the injury. It is likewise settled that the doctrine of imputed negligence does not obtain in Ohio. Cincinnati Street Ry. Co. v. Wright, Admr., 54 Ohio St., 181, and cases cited. In 1 Shearman & Redfield on Negligence (6 ed.), Section 66, attention is directed to the fact that no court of last resort in this country longer applies or approves the doctrine announced by an English court in the well-known case of Thorogood v. Bryan, 8 C. B., 115, which was, in substance, that a passenger in a public vehicle, though having no control over the driver, must be held to be so identified with the vehicle as to be chargeable with any negligence on the part of the operator, which contributed to an injury inflicted upon such passenger by the negligence of a stranger. It is then said by that authority, on page 166, that "The only remnant of this doctrine which remains in sight anywhere is the theory that one who rides in a private conveyance thereby makes the driver his agent, and is Opinion, per Matthias, J. thus responsible for the driver's negligence, even though he has absolutely no power or right to control the driver. This extraordinary theory, which did not even occur to the hair-splitting judges in Thorogood v. Bryan, was invented in Wisconsin, and sustained by a process of elaborate reasoning; and this Wisconsin decision, in evident ignorance of all decisions to the contrary, was recently followed, with some similar reasoning, in Montana, and in Nebraska. * * * The notion that one is the 'agent' of another, who has not the smallest right to control or even advise him, is difficult to support by any sensible argument. This theory is universally rejected, except in the three states mentioned, and it must soon be abandoned even there.” It is urged upon the other hand by this authority, supported by numerous cases, that a plaintiff cannot be excused from using due care for his own safety by showing that he relied upon a stranger to do it for him. He must still exercise ordinary care to discover dangers and avoid injury, and cannot recover damages for an injury to which he directly contributed by his own negligence. The questions of fact, therefore, to be submitted to and determined by the jury in a case such as the one before us, are whether the company, by the negligent operation of its car, caused the injury to the plaintiff, and whether the plaintiff, by his own negligence, directly contributed thereto. In submitting such questions to the jury the instructions of the court should be based upon the facts disclosed by the record. It cannot be concluded from an examination of this record that the plaintiff, who was a guest of the |