Fritch v. Cincinnati Trac. Co.

Ohio Circuit Courts

Fritch v. Cincinnati Trac. Co.

22 Ohio C.C. Dec. 536

DecidedMarch 15, 1911

StatusPublished

This text of 22 Ohio C.C. Dec. 536 (Fritch v. Cincinnati Trac. Co.) 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.

Bluebook

Fritch v. Cincinnati Trac. Co., 22 Ohio C.C. Dec. 536 (Ohio Super. Ct. 1911).

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Opinion

SMITH, J.

The court is of the opinion that there was no error in overruling the motion of plaintiff in error for a new trial on the ground of newly-discovered evidence. The evidence at its best was cumulative, and under the rule laid down in Ludlow v. Park, 4 Ohio 5, 44, such evidence, while it might induce a different verdict with its introduction, it would not require a different one.

[537]*537There, was no error in the submission of the special interrogatories, nor in the giving of the special instructions asked by defendant in error except special charge No. 2 with reference to plaintiff’s own evidence raising a suspicion that the decedent was negligent himself. We think under the circumstances of this case, the decedent being a child eight years of age, that the charge as given by the court is not qualified sufficiently to place before the jury the consideration of negligence upon his part from the standpoint of a boy of his age, capacity and intelligence. A child is held to such care and prudence only as would be expected from a child of his age and capacity. L. E. & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640]; Citizens Elec. Ry. L. & P. Co. v. Bell, 26 O. C. C. 691 (5 N. S. 321).

We find no other errors in the record, but for the above reason the judgment of the trial court will be reversed, and a néw trial ‘granted.

Giffen and Swing, JJ., concur.

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SMITH, J.

The court is of the opinion that there was no error in overruling the motion of plaintiff in error for a new trial on the ground of newly-discovered evidence. The evidence at its best was cumulative, and under the rule laid down in Ludlow v. Park, 4 Ohio 5, 44, such evidence, while it might induce a different verdict with its introduction, it would not require a different one.

[537]*537There, was no error in the submission of the special interrogatories, nor in the giving of the special instructions asked by defendant in error except special charge No. 2 with reference to plaintiff’s own evidence raising a suspicion that the decedent was negligent himself. We think under the circumstances of this case, the decedent being a child eight years of age, that the charge as given by the court is not qualified sufficiently to place before the jury the consideration of negligence upon his part from the standpoint of a boy of his age, capacity and intelligence. A child is held to such care and prudence only as would be expected from a child of his age and capacity. L. E. & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640]; Citizens Elec. Ry. L. & P. Co. v. Bell, 26 O. C. C. 691 (5 N. S. 321).

We find no other errors in the record, but for the above reason the judgment of the trial court will be reversed, and a néw trial ‘granted.

Giffen and Swing, JJ., concur.

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Bluebook (online)

22 Ohio C.C. Dec. 536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fritch-v-cincinnati-trac-co-ohiocirct-1911.