Cincinnati Street Railway Co. v. Jenkins

20 Ohio C.C. 256

• Court: Ohio Circuit Courts
• Decided: January 15, 1900
• Status: Published

Opinions

Smith, J.

One of the principal grounds urged by counsel for the plaintiff in error for he- reversal of this judgment is, that the trial judge refused to give to the jury, before the argument of the case, certain specific written charges which had been submitted to him for that purpose, and that he was thereby prevented from arguing to the jury the facts in the case in the light of the law, as it should have been presented to the jury before the argument commenced.

The record in this case simply shows that at the close of the testimony in the case, the “counsel for the defendant requested the following special charges to be given.’’ Then follow ten special charges, all of which were refused, and to the refusal to give each one, the counsel for the defendant excepted. But it does not appear that the court was asked to give these charges to the jury before the argument, or that the court refused to do so, or that any exception was taken to the action of the court in refusing to give them, or either of them, before the argument,. From all that appears, it was just a case where counsel present certain charges to be given by the court when giving the general charge to the jury at the close of the argument. While it is held in Village of Monroeville v. Root, 54 Ohio St., 523, that it is the right of a party to have correct written instructions given before argument when properly asked, it is also held that to constitute error as to this, the record must affirmatively show that the court was requested to give such instructions before the argument, and that its refusal to do so was the subject of an exception.

We are of the opinion that several of the charges so asked to be given were sound law and applicable to the case, and should have been given to the jury as asked, or in other language which stated substantially the same proposition of law. We understand it to be conceded that this was substantially done in this case when the charges asked were proper, except as to No. 4. This reads as follows:

“If the jury find from the evidence that the plaintiff and defendant were both negligent, and that the negligence of both contributed directly to cause the injury complained of in this case,then your verdict should be for the defendant. ”

We are not unmindful of the doctrine of the law abundantly sustained by authority, which is a limitation on the general doctrine, that a person may recover in an action damages for injury to himself occasioned by the negligence of another, notwithstanding the fact that his own negligence exposed him to the tisk of injury (and thereby in a sense contributed to his own injury), if the other party, after he became aware,or ought to have become aware of his danger, either willfully injured him, or failed to use ordinary care to avoid injury to him, and did so injure him.

But it seems to me that the charge asked for and refused excludes the idea of any such case as this. It simply calls for the annunciation to the jury of the well settled rule of the law that where the negligence of both parties directly contributes to the injury of the plaintiff, that he can not recover; for in my judgment the words “contributed directly to cause the injury’’ are the equivalent to the words “proximately contributes to the injury,’’ as used in the syllabus of Railway Co. v. Kassen, 49 Ohio St., 230, cited in the memorandum of Judge Giffen; and the defendants in this case, therefore, had a right to have the court say to the jury that if the negligence of both parties directly contributed to the injury,or both proximately contributed thereto that plaintiff was not entitled to recover.

There can be no question, though, but that the trial court was not bound to give the charge in the language, used by defendant’s counsel, but might give it substantially in other language, and if the evidence justified it, go further and state to the jury the rule as to‘the more proximate cause,'’ as stated in the case last referred to and in many other cases.

The question then recurs, whether the court having refused to give this special charge to the jury (which, I think, ought to have been given), gave it in substance, or whether there were such qualifications made to it as in effect stated a different rule to the prejudice of the defendant.

It may be said that the charge given by the court upon this subject is quite lengthy and in some particulars is not so clear and explicit as it ought to be. In some parts of it, language was used which would seem to be sufficient to convey to the minds of the jury the doctrine of the law expressed in the special charge asked for. For instance, the court says:

“The proximate cause is that cause which is immediately operative, without the intervention of any other. Now, if the parties were mutually to blame — were equally at fault, so that you would be entitled from the evidence to say that the proximate cause was the act of both, then the plaintiff could not recover. ”

Again:

“And if it should be your judgment that the mutuality or fault was such that the conduct of both parties was the proximate cause of this accident, the plaintiff can not recover, and your verdict will be for the defendant,”

But the paragraph last quoted is immediately followed by. this:

“But, gentlemen of the jury, on the other band there is another rule of law which applies even in cases where both parties aré to blame,where the conduct of both has contributed to the accident, and that is this:. If the circumstances are-such, that, notwithstanding the negligence of the plaintiff, the defendant could, by the exercise of ordinary care have avoided the accident, then, notwithstanding the negligence of the plaintiff, the plaintiff can recover * * * * So if it be your judgment that the defendant was negligent,and the plaintiff was negligent, but that the defendant, by the use of such care as I have described, could have avoided the accident, notwithstanding the plaintiff’s negligence, then your verdict will be for the plaimiff. ”

It seems to me that these paragraphs from the charge state the rule altogether too strongly against the defendant below, and if such is the law, that there are very few cases where a plaintiff would not be entitled to recover, even though he had been guilty of'negligence himself directly contributing to the injury. There should have been si me limitation in the language used, for instance to the eff-ct that although the plaintiff had originally been negligent, for instance in driving on the track, or in suddenly attempting to drive across it in the face of a near and rapidly approaching '■ar, and his danger was discovered by the motor,man, or should have been so discovered in the exercise of due care, and that he then failed to use proper care to prevent injury, that in such case the plaintiff might recover. But there wrs no such limitation, and the jury might well have concluded from this part of the charge that the plaintiff was entitled to recover, even if his own negligence bad proximately contributed to the accident, though this certainly could not have been the meaning of the trial judge.

The defendant’s counsel having excepted to the whole charge, as they had a right to do in this case, under the recent statute, I am of the opinion that there was error in the charge of the court prejudicial to the defendant,and that for this reason also the judgment should be reversed.