Cleveland Ry. Co. v. Owens

• Decision Date: 22 April 1935
• Citation: Cleveland Ry. Co. v. Owens, 51 Ohio App. 53, 199 N.E. 607 (Ohio App. 1935)
• Parties: CLEVELAND RY. CO. v. OWENS.
• Court: Ohio Court of Appeals

199 N.E. 607

51 Ohio App. 53

CLEVELAND RY. CO. v. OWENS.

Court of Appeals of Ohio, Eighth District, Cuyahoga.

April 22, 1935

Action by Fred Owens against the Cleveland Railway Company. Verdict and judgment for plaintiff, and defendant brings error.-[Editorial Statement.]

Affirmed.

Syllabus by the Court .

1. Where numerous specifications of negligence are submitted for the consideration of the jury, it cannot be urged as reversible error that the court failed to withdraw a particular specification not supported by any evidence when no request had been made by the defendant to withdraw such specification.

2. In an action for damages for injuries received by a guest passenger in an automobile which was struck by a bus owned and operated by the defendant railway company, any error in the charge of the court upon the legal consequences attached to the alleged intoxication of the automobile driver becomes immaterial where the jury, by the return of a general verdict, finds the defendant company guilty of negligence proximately contributing to the accident.

3. In an action by a guest passenger for damages for injuries sustained in an automobile accident, intoxication of the driver does not in itself constitute negligence upon which legal liability may be premised, but is only a remote circumstance reflecting upon the issue of negligence.

Squire, Sanders & Dempsey, of Cleveland, for plaintiff in error.

Payer Corrigan & Cook, of Cleveland, for defendant in error.

LEMERT, Presiding Judge.

Fred Owens, defendant in error, plaintiff below, recovered a verdict and judgment in the common pleas court in the sum of $3500, for injuries which he sustained on the 11th day of May, 1932, defendant in error being struck by a large bus owned and operated by the plaintiff in error company.

Three grounds of error are presented by way of brief and are urged upon this court to reverse the court below, and in oral argument a fourth ground is urged.

Plaintiff in error contends that there is error in the record for the following reasons:

First. That the court erred in refusing to hold that there existed a joint enterprise between plaintiff and Pyler, the driver of the vehicle in which he was riding as a passenger and which was struck by defendant's bus.

Second. That the verdict and judgment are against the weight of the evidence.

Third. That the court should have withdrawn the specification of negligence to the effect that the defendant's bus driver failed to warn by horn or otherwise of his rapid approach, although the record shows that the defendant made no request that the same be withdrawn.

Fourth. For error in the charge of the court upon the matter of the intoxication of Pyler.

In reference to the first alleged ground of error, from an examination of the record before us, we are convinced that there was no error in refusing to hold that there was a joint enterprise between plaintiff and Pyler. The record is clear that the plaintiff was riding as an invited guest of Pyler and there is nothing in the record that indicates by way of arrangement, act, or conduct between them that would warrant the court in charging that there was a joint enterprise.

On the second alleged ground of error an examination of the record convinces us that there was ample testimony in the case and before the jury in the court below to warrant the verdict of the jury and that said verdict and judgment are not against the weight of the evidence.

On the third ground of error, that the court erred in refusing to withdraw the specification that defendant failed to warn by horn or otherwise of the rapid approach of its bus, we have to say that we fail to find in the record that the defendant made any such request that the same be withdrawn. The plaintiff in error to sustain this claimed ground of error cites the case of Cleveland R. Co. v. Wendt, 120 Ohio St. 197, 165 N.E. 737. An examination of that case discloses the fact that it is not a parallel case and is not controlling in the instant case. It has been frequently held by reviewing courts that where numerous specifications of negligence are submitted for the consideration of the jury, it cannot be urged as prejudicial or reversible error that one or more of such specifications are not supported by any evidence in the record.

The Court of Appeals of the Eighth Appellate District so held in the case of Herron v. Gee, 11 Ohio Law Abs. 190,35 O.L.R. 375. In that case the complaining counsel actually made a specific request that the allegations complained of should be withdrawn from the considerations of the jury, which request was overruled by the court. Yet it was held not to constitute reversible error. The court, in passing upon this question, said:

‘ We do not think that the court was called upon to analyze and take from the jury every allegation of negligence which was specified in the petition, if it would properly charge that she could only recover for those acts of negligence which the proof showed that the defendant was guilty of, and that the court did in this case, for we think it very properly covered the matter in its charge.

‘ We do not think the court had to particularize and take from the jury everything upon which the defendant below claimed there was no evidence.’

So upon this alleged ground we find no error.

Upon the fourth alleged ground of error, to wit, the charge upon intoxication of Pyler: Plaintiff in error complains that the court in charging upon the legal consequences attached to the alleged intoxication of Pyler, the driver of the other vehicle, committed prejudicial error. We are of the opinion that this question becomes immaterial because of the jury by the general verdict which it returned necessarily found that the defendant, the Cleveland Railway Company, was guilty of negligence proximately contributing to the accident. This would suffice to make the defendant responsible, regardless of whether Pyler was also negligent. The finding of the jury is conclusive that the accident did not result from the sole negligence of Pyler since the defendant, the Cleveland Railway Company, was found to have been guilty of negligence. Therefore, it becomes unimportant to determine whether Pyler was actually guilty of negligence or whether the charge with reference to the negligence of Pyler was technically correct. The charge of the court pointed out and made clear the propositions with reference to the liability of the railway and the negligence, if any, of Pyler, wherein the court said:

‘ That is, if the plaintiff was injured and was injured solely as a proximatge result of the negligence of Pyler, then you cannot find against the defendant Company. If Pyler was negligent and his negligence alone was the direct and sole cause of the

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