Behm v. Cincinnati, Dayton & Toledo Traction Co.

Citations

• 86 Ohio St. (N.S.) 209

Syllabus

<p>Suit to recover for personal injury — Plaintiff charges negligence of defendant — Defendant alleges negligence of plaintiff — Court’s charge to jury — Latter may consider both allegations of negligence — •Law of pleadings.</p> <p>1. Where, in a suit to recover for personal injury, negligence of the defendant is charged in the petition which is denied by the answer, and it is in that pleading averred that whatever injuries plaintiff received were caused by his own negligence, which allegation is denied by the reply, and evidence is given at the trial tending to support the claim of each party, it is not error for the court, after stating to the jury the issues definitely made by the- pleadings, and as part of the charge wherein the law generally applicable is accurately stated, to charge that: “The other issue of fact for you to determine is as to whether or not plaintiff himself by his own acts (the alleged negligence which the defendant sets up) contributed to the injury he received.”</p> <p>2. Nor is it error for the court, further charging the jury, to say: “And if you find both that the Company was negligent, that the negligence was the proximate cause, but if you find also that the plaintiff by his own negligence contributed to the injuries he received, then, too, you should find in favor of this defendant Company.”</p> <p>3. Nor is such charge, as' a whole, calculated to mislead the jury, or in any way work prejudice to the defendant.</p>