Cincinnati Trac. Co. v. Sanders

22 Ohio C.C. Dec. 413

• Court: Ohio Circuit Courts
• Decided: July 3, 1909
• Status: Published

Opinion

giffen' p. j.

The admission of plaintiff that while sitting on the seat with the driver she saw the approaching car nearly half a, square away, in the absence of any attempt to warn the driver,, raises a presumption of negligence on the part of plaintiff' which was not removed and entitled the defendant to an instructed verdict, unless there was testimony tending to prove that the motorman as alleged in the petition saw plaintiff’s: peril and failed to exercise ordinary care to avoid a collision. There was some such testimony and the motion was properly overruled. Upon that issue the negligence of the motorman was. the more proximate cause.

It was not his duty, however, as stated in the general charge, “to do all he could to avoid such collision.” He was required, to exercise a proper degree of care under the circumstances, to wit, ordinary care.

The charge of the court on the subject of burden of proof was misleading as the jury may well have inferred that the defendant was required to prove that the accident was due .solely to the negligence of the plaintiff or the driver as averred in its answer, although it denied all negligence on its part. Such an answer is itself misleading and serves no good purpose when the defense relied upon is a general denial.

, In view of negligence of plaintiff and the want of sufficient, evidence of negligence of the motorman after he became aware of the plaintiff’s peril, the motion for a new trial should have been granted; also on the ground that the verdict was not sustained by sufficient evidence.

Judgment reversed and cause remanded for a new trial.

Smith and Swing, JJ., concur.