Cincinnati Traction Co. v. Johnson
This text of 10 Ohio C.C. (n.s.) 467 (Cincinnati Traction Co. v. Johnson) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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 car 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 shy 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 O. S.
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 [468]*468time 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 proceed-’ ings according to law.
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Cite This Page — Counsel Stack
10 Ohio C.C. (n.s.) 467, 1908 Ohio Misc. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cincinnati-traction-co-v-johnson-ohiocirct-1908.