McMurtrie v. Wheeling Traction Co.

Citations

• 107 Ohio St. (N.S.) 107

Syllabus

<p>Negligence — Exercise of care and contributory negligence— Questions of fact or law, when — Court of appeals — First reversal upon weight of evidence — Second reversal for contributory negligence — Section 11511, General Code, applies, when.</p> <p>1. Where any phase of the facts, as shown by the evidence upon the subject of contributory negligence, will warrant the inference that the plaintiff, at the time of the injury, was exercising due care, it cannot be said that plaintiff was guilty of contributory negligence, as a matter of law.</p> <p>2. In all oases where in determining the existence or non-existence of contributory negligence it becomes necessary to detect tlie truth from conflicting evidence, it becomes a question of fact and not of law.</p> <p>3. A court of appeals having once reversed a case upon the weight of the evidence is not prohibited by the provision of Section 11577, General Code, to again pronounce judgment of reversal upon the ground that the plaintiff was guilty of contributory negligence as a matter of law. But where it requires the weighing of evidence to determine whether plaintiff was guilty of contributory negligence it becomes a question of fact, and the provisions of that section apply.</p>