Opinion
No. 21748
Decided December 4, 1929.
Negligence — Comparative negligence applies only in actions by employee against employer — Contributory negligence bars recovery by plaintiff, when — Prejudicial error to refuse special instructions to jury before argument, when — Section 11447, General Code.
1. Section 11447, General Code, confers upon parties in civil actions the right to have instructions, presented in writing, given to the jury before argument, upon request, if same be a correct statement of the law and pertinent to one or more issues in the case. A denial of such right constitutes prejudicial error.
2. The doctrine of comparative negligence has application in this state only in actions by an employee against his employer.
3. In the trial of an action to recover damages for negligence in the operation of a motor vehicle, evidence of negligence on the part of plaintiff having been adduced, it was not error to give to the jury the following requested instruction before argument: "If you find from the evidence that the plaintiff's own negligence directly caused or contributed in the slightest degree to cause the injuries complained of, then your verdict must be for the defendant."
CERTIFIED by the Court of Appeals of Hamilton county.
This action originated in the court of common pleas of Hamilton county, where Lewis Craig sought to recover from L.W. Bartson, doing business as "The Bartson Driveaway Company," damages for injuries alleged to have resulted from the negligence of the defendant. The claim as stated in the petition is, in substance, that on January 23, 1926, plaintiff Craig, an infant 14 years of age, was coasting on a sled at or near the intersection of Wyndham avenue and Rockdale avenue in the city of Cincinnati; that, at the time, Wyndham avenue was blocked at its intersection at Rockdale avenue against automobile traffic, so that it could be used for coasting purposes; that plaintiff, while on a coasting sled, turned from Rockdale avenue into and upon Wyndham avenue, and that defendant, by its servant, carelessly, negligently and unlawfully drove his automobile from Rockdale avenue into and upon Wyndham avenue at a high and dangerous rate of speed, and negligently and carelessly turned the corner suddenly at the intersection of said streets, while plaintiff was coasting on his sled in full view of the driver of said automobile, and by reason of his negligent driving struck and ran over the plaintiff and thereby caused the injuries described in the petition.
The answer was a general denial.
Upon the trial of the case evidence was adduced which tended to show negligence of the plaintiff directly contributing to cause the collision and consequent injury. At the conclusion of the evidence, and before argument, the court, upon the request of counsel for the defendant, gave the following instruction: "I charge you, ladies and gentlemen of the jury, that if you find from the evidence that the plaintiff's own negligence directly caused or contributed in the slightest degree to cause the injuries complained of, then your verdict must be for the defendant."
The court then said to the jury: "This special charge, together with the general charge which will be given to you at the conclusion of the argument, constitute the law in this case which is to govern you in arriving at your conclusions."
The jury returned a general verdict for the defendant, upon which judgment was rendered. Upon proceeding in error the Court of Appeals reversed the court of common pleas upon the ground that the trial court committed prejudicial error in giving said requested instruction. The Court of Appeals found its judgment to be in conflict with the judgment of the Court of Appeals of the Eighth Appellate District in the case of Kalovsky v. Meyer Dairy Products Co., 30 Ohio App. 118, 164 N.E. 370, and certified the record to this court for review and final determination.
Messrs. Dolle, O'Donnell Cash, for plaintiff in error.
Mr. Andrew W. Kops, for defendant in error.
The single question presented by the record is whether the instruction requested relative to contributory negligence and given before argument was erroneous. That instruction is almost identical in terms with that involved in the case of Chesrown v. Bevier, 101 Ohio St. 282, 128 N.E. 94, which was unanimously held to be a correct statement of the law, although preference for a different form of statement was expressed. The trial judge in that case had refused to give the requested charge. A judgment for the plaintiff was affirmed by the Court of Appeals, but was reversed by this court for refusal to give the requested charge and for error in the general charge.
Numerous authorities support the view that the requested instruction was a correct statement of the law of contributory negligence. The subject is discussed in 20 Ruling Case Law, 101, and 45 Corpus Juris, 979, and many cases are there cited where the question here presented has been considered and decided.
The doctrine of comparative negligence has no application in this case. In this state it is limited to actions brought by an employee against his employer by virtue of the provisions of Section 6245-1, General Code. The essential element of contributory negligence such as to bar recovery by the plaintiff is not the comparative extent or degree of negligence. The test is rather whether the negligence of the plaintiff, whatever it be, caused or directly contributed to cause the accident and injury. Negligence on the part of the plaintiff, if it concur with the negligence of the defendant to directly cause the accident and consequent injury, will defeat recovery by the plaintiff. Whatever the degree, even though slight in comparison to the negligence of the defendant, if the fault of the plaintiff was operative, the plaintiff is concluded, regardless of the degree in which it was operative.
The instruction requested in this case directed the jury that, if the plaintiff's own negligence directly caused or contributed to cause the injuries complained of, the verdict should be for the defendant. Plaintiff's negligence directly causing or contributing to cause his injuries does warrant a finding against him upon his claim for damages; and that is true regardless of the degree or extent, and hence, if it directly contribute in the slightest degree to cause the injury, it being a part of the direct cause, recovery by the plaintiff is not authorized.
It is contended, however, that such instruction, though generally correct in an action to recover for negligence, was erroneous in this case for the reason that, plaintiff being a minor, it was essential that the instruction requested must be accompanied by a further instruction defining the term "negligence" as applied to a minor.
In every negligence case the term "negligence" should be defined and the jury fully instructed with reference thereto. Such instruction was given in this case in the general charge, and no complaint is made in that regard. The fact that a different standard of care is required of a minor than of an adult was fully and correctly stated to the jury in the general charge, and the jury was admonished that it should follow the instructions of the court embraced in the general and the special instructions, and that, taken together, they constituted the law which should govern the jury in arriving at its conclusion.
The instruction requested constituted a correct proposition of law. If counsel for the plaintiff desired a special instruction given before argument with reference to the standard of care required of a minor plaintiff, such requested instruction should have been presented. The instruction in question being one which correctly states the law, and being pertinent to one or more issues of the case, was such as to come within the purview of subdivision 5 of Section 11447, General Code. There has been some question as to the propriety of that provision under which a trial court is required, upon request before argument, to give an instruction presented upon a single proposition of law which is further emphasized by reason of being before the jury in its deliberations. Such criticism, however, must be addressed to the legislative body. That provision has long been a part of the trial law of this state, and it has frequently been held to be mandatory in character; hence, where the requested instruction meets the requirements above indicated, the trial court has no alternative, but must give it to the jury before argument. Village of Monroeville v. Root, 54 Ohio St. 523, 44 N.E. 237; Cleveland E. Elec. Rd. Co. v. Hawkins, 64 Ohio St. 391, 60 N.E. 558; Chesrown v. Bevier, 101 Ohio St. 282, 128 N.E. 94; Cincinnati Traction Co. v. Kroger, 114 Ohio St. 303, 151 N.E. 127; Lima Used Car Exchange Co. v. Hemperly, 120 Ohio St. 400, 166 N.E. 364.
The common pleas court was not in error in giving the requested instruction. The judgment of the Court of Appeals is therefore reversed, and that of the common pleas court affirmed.
Judgment reversed and judgment of the court of common pleas affirmed.
KINKADE, ROBINSON, JONES and DAY, JJ., concur.