Glass v. William Heffron Co.

Citations

• 86 Ohio St. (N.S.) 70

Syllabus

<p>Answer denying allegations in petition — And that defendant was negligent — And averring that plaintiff was at fault — Does not raise issue of contributory negligence — Evidence of negligence by both sides — Question of proximate cause — Instructions to the jury.</p> <p>1. An answer which sets up, first, a general denial of the allegations in the petition, and, second, a denial that the defendant was negligent* followed by an averment that it was by the plaintiff’s own fault and negligence that he was injured, does not raise the issue of contributory negligence; but it is more than a denial that the plaintiff was without fault. It is an averment that the plaintiff's own negligence was the sole cause of his injury.</p> <p>2. But in such case, where there is evidence submitted to the jury which fairly tends to prove that the defendant was guilty of negligence and also that the plaintiff was negligent, it is proper for the court to instruct the jury that if they should find that the defendant was negligent and that such negligence was the proximate cause of the injury, and if they should further find that the plaintiff was guilty of some negligence the jury should then determine whether the plaintiff’s negligence was such as, combined with the negligence of defendant, contributed proximately to the injury complained of; and it is neither prejudicial to the defendant, nor erroneous, to instruct the jury that, “the burden of proving contributory negligence of the plaintiff is upon the defendant.”</p>