Cleveland Ry. Co. v. Kukucz

• Decision Date: 18 December 1929
• Docket Number: 21736
• Citation: 169 N.E. 564,121 Ohio St. 468
• Parties: The Cleveland Ry. Co. v. Kukucz.
• Court: Ohio Supreme Court

169 N.E. 564

121 Ohio St. 468

The Cleveland Ry. Co. v. Kukucz.

No. 21736

Supreme Court of Ohio

December 18, 1929

Error proceedings - Insufficient record to reverse judgment directing verdict for defendant - Bill of exceptions incorporated only plaintiff's evidence - Both parties offered evidence upon negligence and contributory negligence.

In a case where negligence and contributory negligence were in issue, evidence was offered by both parties touching those issues. At the close of the entire evidence the trial court sustained the motion of the defendant for a directed verdict in its favor. In the reviewing court the record disclosed that the evidence of witnesses offered by the plaintiff was incorporated in a bill of exceptions but the evidence of defendant's witnesses was not. Held, The reviewing court erred in reversing the judgment of the trial court because of error in directing the verdict.

The parties will be alluded to in the same order as they stood in the trial court, where Frank Kukucz was plaintiff and the Cleveland Railway Company was defendant. The case was tried four times. The plaintiff alleged in his petition that while driving across the intersection of Forman and Broadway avenues, in Cleveland, Ohio, the motor of his automobile stalled on the street railway tracks, and that before he was able to start his car he was struck by an interurban car of the defendant, which was being operated at an unlawful speed and in excess of thirty miles per hour, causing it to collide with the plaintiff's automobile. The plaintiff asked for damages for personal injuries to himself and also for damages caused to his car. The answer was a general denial. Evidence was offered on the issues of negligence and contributory negligence. After the plaintiff had offered his evidence and rested, counsel for the defendant moved for a directed verdict in its favor. In passing upon the motion the trial court, while stating that it felt inclined to sustain the defendant's motion, so far as it related to injuries to the plaintiff, ruled that the cause might go to the jury as to the claim for damages to his property. The motion of the defendant for a directed verdict at the close of plaintiff's case was thereupon overruled. Thereafter numerous witnesses were called by the defendant, the plaintiff meanwhile withdrawing his claim for damages to his automobile.

After evidence had been offered by the defendant, a colloquy occurred between counsel for plaintiff, the court, and counsel for defendant, relating to the direction of a verdict for the defendant at that stage of the case; the former desiring that the order for direction relate back to the period when plaintiff rested, and counsel for defendant insisting upon a directed verdict upon the renewal of its motion at the close of the entire evidence. The record discloses that the colloquy terminated in the court's direction of a verdict for defendant at the close of the entire evidence:

"Counsel for Defendant: I want the record to show we renew our motion to direct a verdict at the end of this evidence also.

"The Court: Yes, the motion is sustained."

No evidence, other...