Cincinnati Traction Co. v. Dorenkemper

Citations

• 22 Ohio C.C. Dec. 239

Syllabus

<p>ERROR — PLEADING—STREET RAILWAYS.</p> <p>1. Verdict Based on Close Question of Contributory Negligence not Disturbed.</p> <p>In an action for death in collision between a street car and buggy, a verdict for plaintiff will not be disturbed on review where the question of contributory negligence was close and properly submitted to the jury.</p> <p>2. Motion for Judgment on Pleadings for Failure to Deny Contributory Negligence too Late After Issue Tried as if Denied.</p> <p>Failure to reply to allegation of contributory negligence does not entitle defendant to judgment on the pleadings, since demand therefor was not made until after both parties had submitted their evidence, and the cause tried as though such averment had been denied.</p> <p>3. Requiring Jury to Find Injured Free from Negligence Before Verdict for Him Different from Case in Which Negligence is Admitted.</p> <p>An instruction, requiring the jury to find plaintiff’s decedent free from negligence in a street railway collision case and that the motorman could or should, in the exercise of ordinary care, have avoided the accident before returning a verdict for plaintiff, cannot be tested by the rule in a case in ■ which contributory negligence was admitted. Erie Ry. v. McCormick, 69 Ohio St. 4'5, distinguished.</p>