18 Ohio App. 145 | Ohio Ct. App. | 1923
The defendant in error, Raymond Robinson, a boy sixteen years of age, brought suit by his- next friend against the plaintiff in error, the city of' Cincinnati, for damages for personal injuries received in an automobile accident on -Spring Grove avenue in the city of Cincinnati.
The case was tried to a jury and resulted in a verdict in favor of the plaintiff, Robinson, in the sum of $5,000.
The court overruled a motion for a new trial, and entered judgment on the verdict. Prom that
The grounds of error urged are:
That the court erred in refusing to dismiss the jury and continue the cause, on the motion of the city.
That the court erred in the general charge.
That the verdict is against the weight of the evidence.
The motion to dismiss the jury and for a continuance of the cause was based upon the fact that just after impaneling the jury the jurors were requested to take seats in the court room while the court called in another jury to which had been submitted another case. Information was brought to the court from the jury, considering the other case, that they could not agree on a verdict. Thereupon, the court called that jury into the jury box, and, after ascertaining from them that they could not agree in the case which they were considering, called their attention to the fact that they had disagreed in two cases, and stated to them that while there was no reflection upon their services the fact that they had disagreed in two cases indicated that the general interest of justice might not be promoted in retaining them in future cases, and thereupon discharged them for that term.
It is urged by the city that this taking place in the presence of the jury in the immediate case was prejudicial. We do not see how any prejudice is shown to have resulted to the city. There was nothing in any way improper in the remarks made by the court, or which would tend to coerce a jury into an agreement. In fact, the court stated
At the close of the general charge, counsel for the city, plaintiff in error, made the following request :
“I ask the court to charge that if the injuries sustained by the plaintiff were caused by the sole negligence of Reeves, who was driving the car, then there can be no recovery against the city of Cincinnati; also that if the plaintiff and the other occupants of the machine were engaged upon a joint enterprise, then the negligence of the driver would be considered as the negligence of the plaintiff and attributed to him.”
This request the court refused, and it is urged by plaintiff in error that it was entitled to a charge upon the question of joint enterprise, claiming Robinson to have engaged in a joint enterprise with the driver of the machine and the other boys-.
The court charged the jury fully on- the question of sole negligence and contributory negligence.
It appears that a boy by the .name of Reeves was driving the automobile at the time of the accident; that some time in the evening of August 27, 1922, Reeves, together with two or three other boys, went to a garage and rented a Ford taxi
Joint enterprise was not pleaded as a defense. If the city was entitled to a charge on the subject of joint enterprise, it was at least necessary that the question should have been raised by the evidence. Joint enterprise involves the control and management of one equal with another, all being engaged jointly in a common enterprise, and each assuming the responsibility for his colleague’s conduct. N. Y., C. & St. L. Rd. Co. v. Kistler, 66 Ohio St., 326; 20 Ruling Case Law, 159.
We have read the record through and find no fact which would bring this question into the ease. Bobinson was invited to take a ride by the boys who had procured the machine some hours before. The evidence shows that all Bobinson did was to accept the invitation, get in the car, and take a seat with his back to the driver. He assumed no
The court properly refused to eharg*e on the question, and there was no error in the refusal.
On the weight of the evidence we find the verdict sustained by the evidence.
It is the duty of the city, and the court so charged, to keep or maintain the streets in a reasonably safe condition for public travel. The evidence is that the street at the place in question was badly out of repair and full of holes; that the hole which caused the accident was near the street car track, which track is in the center of the street, was from fifteen to eighteen inches deep, and about three feet long; that the hole was large enough to appear to be a dark place in the street; and that the street had been in this condition for some months. The testimony of the assistant city engineer was that the city knew this street at that place was out of repair. He further testified that the necessary repairs of the place in question, covering a space of about one hundred and fifty yards, could have been made in one day.
Under these circumstances, the court submitted the question to the jury as to whether or not the city had exercised ordinary care in permitting the street to be in the condition indicated, and also the question whether the street was in an unsafe condition for public travel. That the defect in the street caused the injury was clearly shown. These were questions for the jury and were properly submitted.
We find no prejudicial error in the record.
Judgment affirmed.
