Fritch v. Cincinnati Traction Co.

14 Ohio C.C. (n.s.) 79

Opinion

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’s Heirs v. Park, 4 Ohio, 44. such evidence, while it might induce a different verdict with its introduction, it would not require a different one.

There 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. Railway Co. v. Mackey, 53 O. S., 370; 5 C.C.(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 new trial granted.