Cincinnati Traction Co. v. Piker

11 Ohio App. 54 | Ohio Ct. App. | 1919

Shohl, P. J.

Defendant in error, Samuel Piker, was driving an open wagon south on Gilbert avenue, Cincinnati^ a straight, wide street. At a point south of Morris street Gilbert avenue was being repaired. At that point defendant in error turned to the left for the purpose of crossing the street car tracks to get around that part of the street undergoing repairs. While on the south bound track his wagon was struck by a street car. He brought this action in the municipal court of Cincinnati, where a jury trial was had resulting in a verdict and judgment in 'his favor.

The evidence was conflicting. The witnesses for plaintiff stated that the driver looked and saw the street car coming; that it was quite a distance away, varying from two hundred and fifty feet to something over a square; and that the car was running down a steep grade at a high rate of speed. The witnesses for the company testified that the car was running at a moderate or slow speed; that when the driver turned across the track the car was but a short distance away, varying from ten to fifty feet; that the driver did not look in the direction that the car was approaching; and that the motorman had the car under control and when he realized the danger stopped the car within a short distance. At the conclusion of all the evidence, counsel for the traction company made a motion to take the case from the jury “on the ground that the evidence shows conclusively contributory negligence on the part of the plaintiff.” This motion was overruled. After the case was argued, the court charged the jury; but did not submit the question of contributory negligence.

In view of all the testimony it would not have been improper for the court to have instructed the jury as to the law of contributory negligence.

Indeed it is the duty of the court to instruct as to the law governing the situation thus developed. (The Rayland Coal Co. v. McFadden, Admr., 90 Ohio St., 183.) This duty of the court must be considered in connection with the duty of counsel. The attorneys for both sides reserved only a general exception to the charge. The law is clear that a general exception to the charge of a trial court does not raise any question of error as to the omission of the court to give further correct instructions, but presents only questions of errors of law existing in the charge as given. The State of Ohio v. McCoy, 88 Ohio St., 447, and The Columbus Ry. Co. v. Ritter, 67 Ohio St., 53.

The last-named case specifically decides that the failure to charge is not ground for reversal unless it was called to the attention of the court and further instructions requested and refused.

The same point was referred to in the case of Rayland Coal Co. v. McFadden, supra. After the supreme court states the duty of the trial judge to instruct the jury, it points out that in the case then on trial there was more than an omission on the part of the judge, who expressly charged on the subject of contributory negligence and stated that it was not in the case. In view of this explicit statement of its views, counsel for defendant was not required to make further request. That case presents an example of ah incorrect charge and does not conflict with the rule laid down in the McCoy and the Ritter cases, supra.

It has been urged that in the case at bar the request for a directed verdict was tantamount to a request for a charge on the subject of contributory negligence, because it called to the attention of the judge the claim of the defendant that there was contributory negligence.

Instances might be presented of request's to charge of varying degrees of informality. Contributory negligence might be asserted in the opening statements, in arguments as to the admissibility of testimony, or in argument to the jury. There is no authoritative decision that such action -constitutes a sufficient compliance with the doctrine of the McCoy and Ritter cases. Moreover, there is an additional circumstance in this case. The record shows that after the trial judge had expressly explained the law of the case to the jury, he addressed counsel and asked: -“Anything else, Gentlemen, on the general proposition of law?” Counsel responded that there was nothing. Under all the circumstances this would constitute a waiver of objections to the omission of the court, within the rule referred to at page 195 of the Rayland Coal Company case, supra.

The judgment will be affirmed, but without penalty.

Judgment affirmed.

Cushing, J., concurs. Hamilton, J., not participating.