Opinion
Decided May 11, 1931.
Negligence — Contributory negligence, directly and proximately causing injuries — Failure to use bar in passing through revolving door — Question for jury — Directed verdict — Plaintiff's evidence given most favorable interpretation.
1. Whether plaintiff, suing for injuries, was guilty of negligence proximately contributing to injuries, in failing to use bar in revolving door while passing through it, held for jury.
2. In reviewing directed verdict for defendant, plaintiff's evidence must be given most favorable interpretation toward plaintiff.
ERROR: Court of Appeals for Cuyahoga county.
Mr. J.B. Dworken and Messrs. Anderson Lamb, for plaintiff in error.
Messrs. Howell, Roberts Duncan, for defendant in error.
This case is in this court upon a petition in error to the court of common pleas of Cuyahoga county. There the parties stood in the same relative position as they appear here, and hereafter they will be alluded to as plaintiff and defendant.
The action, instituted by Ellen Brookins, was for damages for personal injuries, caused, as plaintiff claimed, by the negligence of the defendant. The alleged negligence consisted in owning, maintaining and operating a defective revolving door.
The defendant denied any negligence upon its part, denied any ownership in or control over said door, and pleaded the negligence of the plaintiff as the sole and proximate cause of the injuries received, which plaintiff in turn denied.
Upon trial by jury, the trial court, upon defendant's motion, directed a verdict in its favor at the close of plaintiff's evidence in chief, assigning as its reason for so doing that plaintiff's own evidence had raised a presumption of contributory negligence on her part, which she had not counterbalanced by any evidence.
A motion for new trial was overruled and judgment entered on the verdict. A reversal of this judgment is now sought by plaintiff.
Did the trial court err in directing a verdict for the defendant? That was the sole question on the motion for a new trial in the court below, and is the sole one here.
To review the evidentiary facts at length will serve no useful purpose, as counsel and the parties are well acquainted with them. Suffice it to say that evidence was offered by plaintiff tending to prove ownership, management, and control of the revolving door in defendant. A witness testified that defendant installed the door, purchased rubber and felt to repair it, and employed a guard to watch and care for it. The door leads into defendant's bank. Surely these facts tend to establish in defendant an ownership in and control over said door.
Whether plaintiff was or was not guilty of negligence directly and proximately contributing to the injuries of which she complains, in failing to use the brass bar in said door while passing through it, was clearly a question of fact to be submitted to the jury under proper instructions, and not one of law to be determined by the trial judge, as manifestly different minds in considering it, together with all the other facts and circumstances in the case, might reasonably come to different conclusions.
By giving, as we must under the pronouncement of our Supreme Court, to plaintiff's evidence the most favorable interpretation toward her of which it is capable of receiving, we are persuaded, after a careful reading of the entire record, that the trial court committed reversible error in refusing to submit her case to the jury under proper instructions.
The following cases uphold our conclusions: Ellis Morton v. Ohio Life Ins. Trust Co., 4 Ohio St. 628, 646, 64 Am. Dec., 610; Stockstill v. Dayton Michigan Rd. Co., 24 Ohio St. 83; Dick v. I.C. L. Rd. Co., 38 Ohio St. 389; First Natl. Bank v. Hayes Sons, 64 Ohio St. 100, 59 N.E. 893; Gibbs v. Village of Girard, 88 Ohio St. 34, 102 N.E. 299; Pope, Admx., v. Mudge, 108 Ohio St. 192, 140 N.E. 501; Trentman v. Cox, 118 Ohio St. 247, 160 N.E. 715; Babbitt v. Say, Admr., 120 Ohio St. 177, 165 N.E. 721.
Holding these views, it follows that the judgment of the court of common pleas should be reversed.
Judgment reversed and cause remanded.
CROW and KLINGER, JJ., of the Third Appellate District, sitting by designation in the Eighth Appellate District, concur.