O'Grady v. City of Newark

26 Ohio C.C. (n.s.) 47

• Court: Court of Appeals of Ohio, Fifth District, Licking County
• Decided: March 15, 1916
• Status: Published

Opinion

Powell, J.

Tliis action was commenced by the said plaintiff, who is now plaintiff in error, to recover damages from the defendant for alleged negligence in the care of the streets and public square of the city of Newark, in that the city allowed upon its streets, and near the public square of said city, a certain peanut roaster which, on the 31st day of August, 1911, exploded, and a part of which, after such explosion, struck the plaintiff, to his injury.

The petition, by proper averments, charges negligenee upon the part of the defendant in permitting such dangerous implement to be upon the streets of such city, and charges that the city is liable for such negligenee.

Issue was joined by answer to the amended petition filed in the ease, in which the defendant admits certain averments of the petition; and after such admission denies each and every allegation contained in said petition, and being in its nature a general denial of the material averments of the petition. A second defense is set out in which it is claimed that the plaintiff made a settlement with the owners of the peanut roaster for damages received by reason of such explosion. To this, a reply is filed.

The case came on for trial, and the plaintiff’s evidence was presented to the jury, when a motion was made by counsel for the defendant to direct the jury to return a. verdict in its favor, which motion was sustained, and a verdict was returned accordingly. A bill of exceptions was taken embodying all the testimony and the instructions of the court, and the case was brought into this court for review.

Upon examination of the record, this court is of the opinion that the action of the court in thus directing a verdict was erroneous; that plaintiff’s amended petition sets forth a cause of action in his favor as against the city; that there are sufficient averments in said amended petition which, if found to be true, would entitle him to a verdict at the hands of a jury, 'and that the court erred in directing a verdict in favor of the defendant. In other words, the court is.of the opinion-that there is sufficient evidence shown by the record in favor of the plaintiff to entitle him to have the same submitted to a jury, and that the court should have overruled the motion of defendant asking that a verdict be directed in its favor. For this reason, the judgment of the court below will be reversed, and the ease remanded for a new trial.

Shields, J., and Houck, J., concur.