Odenbaugh v. Homberger

Citations

• 25 Ohio C.C. Dec. 331
• 22 Ohio C.C. (n.s.) 139

Syllabus

<p>AUTOMOBILES — NEGLIGENCE.</p> <p>1. Verdict Based on Adoption of One of Two Diverse Theories of Cause of Action not Disturbed on Review.</p> <p>An action founded upon injuries resulting from a collision between an automobile and a hack in which plaintiff was a passenger, the passenger asserting that the automobile ran into the hack, the owner of the automobile contending that the -hack ran into the automobile, is based upon two diverse theories, neither obscure nor confusing, the determination of which is exclusively the function of a jury, and evidence having been offered, tending to support with considerable plausibility both theories and in the absence of clear perversion of duty by the jury, its adoption of either theory in finding.a verdict will not be disturbed on review.</p> <p>2. Negligence of Driver Imputed to Passenger In Hack.</p> <p>Negligence of a hack driver is imputed to a passenger where the latter had unobstructed view and full opportunity to direct his course; hence, the hack driver having cut across a street from the right to the left side at an intersection, thereby colliding with an automobile coming at right angles on the intersecting street and driven on the right side thereof and at proper speed, all of which was in full view and knowledge of his passenger, the negligence if any is imputed to the passenger.</p> <p>3. Contributory Negligence Alternative Issue Provable by Negative Evidence.</p> <p>The alternative issue of contributory negligence in an action for collision between a hack and automobile, both parties asserting the negligence of the other in causing the injuries, is established by negative evidence that the hack was driven- on the wrong side at a street intersection in disobedience of a municipal ordinance and well known law of the road and in a manner not to be anticipated by the driver of the automobile on the right side of the road and operated at low speed; and an instruction upon such issue is not prejudicial to plaintiff.