Cincinnati Traction Co. v. Johnson

20 Ohio C.C. Dec. 702

• Court: Hamilton Circuit Court
• Decided: January 4, 1908
• Status: Published

Opinion

GIFFEN, J.

The court charged the jury as follows:

“If you should find that the plaintiff did place himself in a position of danger through some remote negligence of his own, and yet notwithstanding this the motorman in charge of the car became aware of his danger in time to stop the ear by using the means at hand, and failed to do so, then the plaintiff may recover notwithstanding- the negligence of the plaintiff; but it is for you to say gentlemen whether this exception applies to this case.”

No such negligence was charged in the petition, and hence the instruction was erroneous and prejudicial. Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421].

There is indeed no real negligence stated in such pleading. The-only allegation on that subject is as follows:

“The agents of the defendant in-charge of said car carelessly and negligently turned on the electricity in such quantity that defendant’s car was driven against plaintiff’s wagon with such force that plaintiff was violently thrown from his wagon upon the curbing of the street.”'

The defect in the pleading consists in the omission of any averment that the agents of the defendant in charge of the car knew, or by the exercise of ordinary care would have known, at the time the-electricity was so turned on, that the plaintiff’s wagon was upon or so near the track that it would be struck.

Judgment reversed and cause remanded for further proceedings according to law.

Swing and Smith, JJ., concur.