Thompson v. Badertscher

Ohio Supreme Court

Thompson v. Badertscher

243 N.E.2d 64, 16 Ohio St. 2d 156

CourtOhio Supreme Court

DecidedDecember 31, 1968

DocketNo. 68-173

StatusPublished

Cited by1 cases

This text of 243 N.E.2d 64 (Thompson v. Badertscher) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thompson v. Badertscher, 243 N.E.2d 64, 16 Ohio St. 2d 156 (Ohio 1968).

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Opinion

Per Curiam.

The instruction given is nearly identical with one approved by the Ohio Judicial Conference. See 1 Ohio Jury Instructions 309, Section 21.10(a). The phrase specifically complained of by the appellee as it there appears is, “or if you are unable to determine how the accident happened then your verdict must be for the defendant.” This phrase appears repeatedly throughout Chapter 21 of the Ohio Jury Instructions. See Sections 21.10(a) [158]*158and (c), 21.30(e), 21.50(d) and 21.60(d). As we view it, tlie charge is an admonition against guessing, a way of saying that if the proof on both sides of a question is left in equipoise the party with the burden of proof must lose. See Bradley v. Cleveland Ry. Co., 112 Ohio St. 35, 40. Compare 1 Ohio Jury Instructions 141, Section 3.50(d).

Since this is as it should be, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.

Judgment reversed.

Taft, C. J., Zimmerman, Matthias and Brown, JJ., concur. O’Neill, Heebert and Schneider, JJ., dissent.

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Per Curiam.

The instruction given is nearly identical with one approved by the Ohio Judicial Conference. See 1 Ohio Jury Instructions 309, Section 21.10(a). The phrase specifically complained of by the appellee as it there appears is, “or if you are unable to determine how the accident happened then your verdict must be for the defendant.” This phrase appears repeatedly throughout Chapter 21 of the Ohio Jury Instructions. See Sections 21.10(a) [158]*158and (c), 21.30(e), 21.50(d) and 21.60(d). As we view it, tlie charge is an admonition against guessing, a way of saying that if the proof on both sides of a question is left in equipoise the party with the burden of proof must lose. See Bradley v. Cleveland Ry. Co., 112 Ohio St. 35, 40. Compare 1 Ohio Jury Instructions 141, Section 3.50(d).

Since this is as it should be, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.

Judgment reversed.

Taft, C. J., Zimmerman, Matthias and Brown, JJ., concur. O’Neill, Heebert and Schneider, JJ., dissent.

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243 N.E.2d 64, 16 Ohio St. 2d 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-badertscher-ohio-1968.

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