Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action by Zampliner to recover damages to his automobile as a result of a collision with defendant’s car. The defendant by way of answer denied all negligence on his part and set up contributory negligence. Two issues were submitted to the jury under the proof and instructions of the court, to wit: the negligence of defendant as a proximate cause of the injury; and contributory negligence on the part of the plaintiff. The court in its charge stated to the jury that the violation of the statutory law would be contributory negligence in itself. The jury returned a verdict for the defendant, whereupon plaintiff prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

1. Standing alone, disconnected from the definition of contributory negligence and the statutory provisions as to speed, the statement of the law as given in the court’s charge had the appearance of prejudicial error, but the responsibility of calling the court’s attention to omissions of definition devolved not alone alone upon the court, but upon counsel as well, and upon default of duty therein, by counsel, the error was waived. (State v. McCoy, 88 OS. 447.)

2. Where a jury renders a general verdict for the defendant, it will not be reversed where there is more than one affirmative defense, unless special interrogatories are directed for answer to the jury in order that the basis of the verdict may be ascertained and specified, as under a general verdict it would be impossible to tell where error is directed against only one of the affirmative defenses, upon which issue the jury relied in rendering its verdict.

3. It is settled law in this State that where the issues are such that a finding of either in favor of the successful party entitled him to the judgment rendered, the judgment should not be reversed for error in the instructions to the jury relating exclusively to the other issue.