177 N.E. 645 | Ohio Ct. App. | 1931
This case is in this court upon a petition in error to the court of common pleas of Cuyahoga county. There the parties stood in the same relative position as they appear here, and hereafter they will be alluded to as plaintiff and defendant.
The action, instituted by Ellen Brookins, was for damages for personal injuries, caused, as plaintiff claimed, by the negligence of the defendant. The alleged negligence consisted in owning, maintaining and operating a defective revolving door.
The defendant denied any negligence upon its part, denied any ownership in or control over said door, and pleaded the negligence of the plaintiff as the sole and proximate cause of the injuries received, which plaintiff in turn denied. *120
Upon trial by jury, the trial court, upon defendant's motion, directed a verdict in its favor at the close of plaintiff's evidence in chief, assigning as its reason for so doing that plaintiff's own evidence had raised a presumption of contributory negligence on her part, which she had not counterbalanced by any evidence.
A motion for new trial was overruled and judgment entered on the verdict. A reversal of this judgment is now sought by plaintiff.
Did the trial court err in directing a verdict for the defendant? That was the sole question on the motion for a new trial in the court below, and is the sole one here.
To review the evidentiary facts at length will serve no useful purpose, as counsel and the parties are well acquainted with them. Suffice it to say that evidence was offered by plaintiff tending to prove ownership, management, and control of the revolving door in defendant. A witness testified that defendant installed the door, purchased rubber and felt to repair it, and employed a guard to watch and care for it. The door leads into defendant's bank. Surely these facts tend to establish in defendant an ownership in and control over said door.
Whether plaintiff was or was not guilty of negligence directly and proximately contributing to the injuries of which she complains, in failing to use the brass bar in said door while passing through it, was clearly a question of fact to be submitted to the jury under proper instructions, and not one of law to be determined by the trial judge, as manifestly different minds in considering it, together with all the other facts and circumstances in the case, might reasonably come to different conclusions. *121
By giving, as we must under the pronouncement of our Supreme Court, to plaintiff's evidence the most favorable interpretation toward her of which it is capable of receiving, we are persuaded, after a careful reading of the entire record, that the trial court committed reversible error in refusing to submit her case to the jury under proper instructions.
The following cases uphold our conclusions: Ellis Morton v.Ohio Life Ins. Trust Co.,
Holding these views, it follows that the judgment of the court of common pleas should be reversed.
Judgment reversed and cause remanded.
CROW and KLINGER, JJ., of the Third Appellate District, sitting by designation in the Eighth Appellate District, concur. *122