187 N.E. 857 | Ohio | 1933
When the Court of Appeals reversed the trial court for failure to direct a verdict in favor of *258
the defendant below, as indicated in its journal entry, it became the duty of the reviewing court to render the judgment that the trial court should have rendered. It should have rendered final judgment instead of remanding the cause to the trial court for further proceedings. Such procedure is authorized by Section 12272, General Code, and is the procedure usually followed by the reviewing courts, including our own. A case exactly similar to this is Metzger Seed Oil Co. v. Berg,
The basis of the claim made by counsel for the defendant below seems to be that, if the boy were intending to board the car as a prospective passenger, when he left the front of the shelter house, and went behind it, he thereby abandoned his status as such, and the company owed him no duty to protect him. We think that claim is untenable. The structure was built and maintained for the purpose of shelter for the company's patrons. On this occasion its lee appeared to afford a much better shelter than did its open front. Whether the plaintiff suffered injury while seeking protection from the storm, or had been injured in its immediate vicinity while approaching the shelter house for the purpose of becoming a passenger, in either event the obligation would be similar, and a duty would be owing to him by the defendant company to exercise ordinary care in the construction and maintenance of the shelter house; upon that feature the court did not charge that the defendant was required to use the highest degree of care, but that it was required to exercise reasonable care in the maintenance of the structure in a reasonably safe condition.
We do not find, nor did the Court of Appeals find, *260
that there was any error in the charge of the court. One of the principal errors urged here is that the trial court erred in giving special instruction No. 3, requested by the plaintiff, relating to the question whether the storm was such as to constitute a vis major. We find no error in that instruction, since it embodied substantially the instruction given by the trial court, and approved by this court, in the case of City ofPiqua v. Morris,
For the reason stated, we therefore reverse the judgment of the Court of Appeals and affirm the judgment of the trial court.
Judgment reversed.
WEYGANDT, C.J., ALLEN, STEPHENSON, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur. *261