| Ohio Ct. App. | May 14, 1923
The plaintiff, administratrix, and her husband, Albert E. Lindeman, were guests of
Roche was driving westwardly along'Gilbert avenue, intending to turn north on a boulevard, but mistook a short blind street, and started to turn in, thinking it to be the boulevard turn. He discovered his mistake, and in turning the machine struck an electric light pole, tearing off the rear wheel of the automobile and throwing Mr. and Mrs. Lindeman from their seats, injuring Mr. Lindeman, from the effects of which he died.
The wife, Myrtle Lindeman, as administratrix, thereupon brought suit against the defendant, Roche, for wrongful death.
The charges of negligence were excessive speed and the negligent and careless operation of the car.
The case was submitted to a jury, which returned a. verdict in favor of the defendant. Plaintiff below thereupon prosecuted error to this court.
The error complained of is the general charge of the court, the objectionable part being as follows :
“As to the first contention of negligence, the court instructs you that one can not recover for injuries brought about by the doing of acts in which one acquiesces, or the doing of which he consents. It is a question of fact for your decision, just as any other question of fact in the ease, whether or not Albert E. Lindeman at the time of, and prior to the happening of the accident, acquiesced in and consented to the speed at which this automobile was being driven. If you find that he did then you will disregard the question of speed*368 as a possible element of negligence, for in the event of such acquiescence as I have said, the plaintiff could not recover by reason of any excessive or negligent rate of speed at which the automobile was being driven.
“If you find that there was no such acquiescence you will consider this question of speed in determining the question of negligence or not.”
This proposition in the charge was repeated and emphasized at the close of the general charge. Exceptions were duly taken.
The charge was clearly erroneous, and in view of the allegation of negligence as to speed was prejudicial.
The answer did not allege contributory negligence on the part of the decedent, neither was there any evidence to raise the presumption of contributory negligence; nor was there any evidence that the decedent acquiesced in, or consented to, the speed of the car. "Why the court should have injected this question into the case, we are unable to understand. Further, we know of no case, nor has any been cited, where such a charge was given. While there is some suggestion in some of the text-writers that consent to an act of negligence might bar recovery, that situation carries the question into the general rule of conduct as to contributory negligence.
If the question of contributory negligence was in the case, the charge would he erroneous, as it fails to state the rule on the question of contributory negligence. The rule of law as to contributory negligence is so well settled that it is not necessary to discuss it here'.
Again, the charge is erroneous in that it under
For error in the gene ml charge, the judgment of the Superior Court of Cincinnati will be reversed, and the cause remanded for a new trial.
Judgment reversed and cause remanded.