No. 8542 | Ohio Ct. App. | Oct 29, 1928
The bill of exceptions contains the examinations of the jurors upon their voir dire. In the briefs for both sides much time and space is devoted to a discussion of the probative value of several affidavits that were used in support of the motion for a new trial upon this ground, but none of these affidavits have been made a part of the bill of exceptions and hence are not available for consideration upon error; 23 O. S. 192; 12 C. C. 679.
The evidence of the plaintiff, if believed, would warrant the finding in the amount returned by the jury. It is true that even from some of the evidence adduced in her behalf, it
The most serious complaint is that in regard to the charge of the court. It is a well settled rule of practice that where there are two rules of law given relative to the same issue, and one of them is wrong.and one of them is right, that the correct charge will not remedy the error made in giving a wrong charge upon .the same issue.
In the case of Plunk v. Railway Co., 74 O. S. 125, the court there said that the rule is that “he who affirms must prove, and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party .affirming must fail.”
Following the 115 O. S. 124 we are bound to hold that the charge of the court given in the case before us, and found at page 303 of the hill of exceptions saying to the jury that if the testimony of plaintiff overweighs the testimony of the defendant, then she has established her case by a preponderance of the evidence, and may recover, is clearly erroneous, even though there is found in other portions of the charge a correct statement of the rule, the error is not cured and the judgment must be reversed.