Maddex v. Columber

4 Ohio Law. Abs. 131

Opinion

DAY, C.

1. In a civil action against a municipal corporation, for damages for personal injuries sustained upon a defective sidewalk, the fact that a proposed member of the jury is a resident and taxpayer of such municipal corporation does not disqualify him as a juror by reason of interest, as provided in Section 11437, General Code, Sub-division 2, if upon inquiry the court determines that notwithstanding such fact the juror if accepted will render a fair and impartial verdict.

2. In such action where the issues tendered are the alleged negligence of the defendants and the claimed contributory negligence of the plaintiff, and there is evidence introduced upon each side tending to maintain such issues, it is prejudicial error for the court upon request of the defendants to instruct the jury before argument that “this is an action brought by plaintiff for damages on account of the alleged negligence of the defendants and the burden of proving that she could not by the exercise of ordinary care have avoided the consequence of such negligence is on the plaintiff,” the burden of proving contributory negligence being upon the defendants, unless the plaintiff’s own evidence raised a presumption of negligence upon her part, in which event it became the duty of the plaintiff to remove that presumption before she could recover. B. & O. R. R. Co., v. Whitacre, 35 Ohio St., 627, approved and followed.

Judgment affirmed.

Marshall, CJ., Matthias, Allen and Kinkade, JJ., concur. Jones, J., concurs in the syllabus and in the judgment. Robinson, J., concurs in proposition 2 of the syllabus and in the judgment.