Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action for wrongful death of a three and one-half year old child. The child was struck by Thompson’s car. In his petition the administrator sat up the ordinary grounds of negligence. Thompson, by way of answer, denied that the child’s death was caused by the negligent operation of defendant’s car, and for a second defense set up the negligence of the parents in allowing the child to run the streets of Youngstown. The jury returned a verdict for defendant, whereupon plaintiff prosecuted error, claiming that the court committed prejudicial error in the introduction of certain testimony. The defendant called as a witness a Mr. Whalen, who testified that he had almost run into the child on one occasion and that he had told the aunt of the child, with whom the boy was staying, to be more careful with the boy. Another witness also testified to the same effect. In sustaining the judgment of the lower court,' the Court of Appeals held:

1. As the evidence was in conflict as to the negligence of the defendant, and the jury decided the question in favor of the defendant, the judgment of the lower court will not be reversed.

2. The court refused to decide the question as to whether or not the testimony offered in evidence was prejudicial or not.