Cincinnati Traction Co. v. Forrest

1 Hosea's Rep. 193

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1907
• Status: Published

Opinion

The plaintiff below based her right to recover upon the alleged fact that the car had stopped in response to her signal, and, while she was in the act of alighting, she was violently thrown to the ground by the negligent starting of the car, and offered evidence to this effect.

There was also conflicting evidence tending to show that she stepped off before the car had come to a stop, and it is claimed in argument, that this fact, assumed to be established by the weight of evidence, constituted negligence per se, and bars recovery.

Upon this theory, the plaintiff in error complains of the following charge, as prejudicial error:

"* * * and if the jury should find from the testimony in this case, that, on her own motion, the plaintiff stepped off the car while it was moving so fast as to render that act dangerous, the plaintiff was not exercising ordinary care, and, contributing thus to the injury, can not recover.

So far as concerns this charge, per se we think it does not involve error, upon the authorities cited by counsel, and under the principle announced by our Supreme Court in Ashtabula Rapid Transit Co. v. Holmes, 67 Ohio St., 153, 155 (65 N. E. Rep., 877).

Had the verdict necessarily involved a finding of the facts, as claimed by the plaintiff in error, the pleadings could have been amended to correspond, but the verdict is entirely consistent with the facts as claimed by defendant in error. The evidence being conflicting, it was entirely within the province of the jury to determine which version they should adopt.

Kittredge & Wilby, for plaintiff. C. W. Baker, for defendant in error.

From an examination of the record, we find no error prejudicial to the defendant below, and consequently the judgment must be affirmed; and it is so ordered.