John J. Connors, Jr. v. William J. Schmidt

257 F.2d 146, 85 Ohio Law. Abs. 246, 7 Ohio Op. 2d 202, 1958 U.S. App. LEXIS 4458

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 22, 1958
• Docket: 13350
• Status: Published

Opinions

PER CURIAM.

This appeal is from a judgment entered on the verdict of the jury for defendant in a personal injury damage suit resulting from an early morning accident involving two automobiles. The verdict was reported in unusual form: “We find the defendant not guilty of negligence.”

After delivery of the charge and before the jury had retired, the attorney for the plaintiff requested the court to clarify “what is the burden or where the burden of proof lies with respect to the issue of contributory negligence.” The judge .stated that he had done so twice.

The record shows that the judge had charged the jury, as follows: “In a ease of this character contributory negligence of the plaintiff is a complete defense if sustained by the defendant and you are not at liberty to determine which was the more negligent and award damages on any comparative basis. Proof of contributory negligence in any degree bars recovery in any sum.” [Emphasis added.] The judge charged later on: “But if you conclude from, the greater weight of the evidence that the plaintiff Connors negligently operated his DeSoto car, directly causing, or contributing in any degree to bring about his accident, then he cannot recover any sum in this case and your verdict in such case must be for the defendant and this would be so even though you believe from the evidence that the defendant was negligent also, directly bringing about the accident.” [Emphasis added.] We think these instructions were adequate to inform the jury that the burden of proof of contributory negligence rested upon the defendant.

After the jury had returned the foregoing verdict, the judge, in response to the request of plaintiff’s attorney for clarification of the burden of proof of contributory negligence, quoted from his instructions and told the jurors that, while he had not specifically said to them that the burden of proof of contributory negligence was on the defendant, he thought his instructions had made it fairly understandable that such was true. He stated to them that to avoid any doubt on the subject he would submit two questions to them. The first interrogatory was: “Was your decision based upon the fact that the plaintiff, by his own negligent operation of his car, directly caused, or contributed to, the accident?” He stated to the jury that, should the first question be answered in the affirmative, the second question would be: “In considering and determining whether the plaintiff was guilty of contributory negligence were you, and are you, able to say that the defendant Schmidt sustained the burden of proof respecting the plaintiff’s contributory negligence?” The jury returned affirmative answers to both of the foregoing interrogatories propounded by the court.

We see no reversible error in the course pursued by the district judge. His original instructions on the burden of proof as to contributory negligence were adequate; but, in an effort to be eminently fair, the court pursued the unique course of testing the jury’s understanding of his original charge and the firmness of their conviction in rendering their verdict.

We find no merit in the contention of appellant that reversible error was committed by the district court in admitting testimony of the police office* concerning the statement of Morley that he was seated in the middle of the front seat, with the driver on his left and Rita Keane on his right, next to the window of the automobile.

It is urged that, where Miss Keane testified that she was in the middle seat, this hearsay statement tended to weaken her testimony. In our opinion, the testimony of the police officer was admissible under the res gestae rule. See Rogers v. French Bros.-Bauer Co., 31 Ohio App. 77, 166 N.E. 427; State v. Champion, 109 Ohio St. 281, 289-290, 142 N.E. 141; State ex rel. Raydel v. Raible, Ohio App., 117 N.E.2d 480, 40 A.L.R.2d 950. However, even if the res gestae rule be inapplicable, we'think there was no prejudicial error in permitting the police officer’s testimony. It does not appear from the record whether or not Miss Keane — had she been seated on the right-hand seat instead of in the middle of the front seat — could or could not have seen what she testified she saw. No merit inheres in any other arguments advanced by appellant.

For the foregoing reasons, we think the judgment of the district court should be affirmed.