Wasserstrom v. Columbus Ry. Co.

2 Ohio Law. Abs. 213

• Court: Ohio Supreme Court
• Decided: February 7, 1924
• Docket: No. 18370
• Status: Published

Opinion

The questions involved in this case are:

1. Is it prejudicial misconduct for attorney for defendant in a personal injury action to advise the jury that the United States Employes Compensation Commission has allowed compensation to plaintiff, a Federal employe, and that in consequence intimate that this Commission is the real party in interest and that plaintiff has been fully compensated?

2. Does the rule announced in Penn C. v. Hart, 101 OS. 196, which is applicable to steam railways, prevent recovery in a street railway case where there is no doctrine of “last chance” involved and the negligence charged is simple neglect to stop or slow down ?

The pleadings alleged that Hyman Wasser-strom! was riding a motorcycle on a street in Columbus and that the defendant negligently and recklessly ran a street car upon and into said motorcycle, and as a result his leg was crushed, and later he died as a result of the injury, leaving as survivors his father and m'other and eleven little brothers and sisters, largely dependent upon him for support. The decedent was in the employ of the U. S. Post-office Department as a messenger, delivering special delivery letters and parcels throughout the city on his motorcycle.

The petition alleged: (1) Failure and neglect to sound any gong. (2) Operating a street car in excess of eight miles per hour in violation of the city ordinance. (3) Failure on the part of the motorman to keep a vigilant watch and failure to give warning and stop the car and prevent collision in violation of the city ordinnance. (4) That the m'otorman by exercise of ordinary care could have seen the decedent in the act of driving over the railway crossing and could have stopped and slowed down the car in time to avoid the collision, but that said motorman recklessly and negligently failed to stop or slow down the street car, but ran! into and against decedent’s m'otorcycle.

There was considerable conflict in the testimony and the jury found in favor of the Railway Conipany. The plaintiff complained of two prejudicial errors which resulted in the finding, to-wit: (1) Misconduct of counsel which prevented a fair and impartial trial, and (2) Error in giving a special request of defendant.

The Court of Appeals affirmed the judgment below.