Opinion
No. 29216
Decided July 14, 1943.
Appeal — Party may not take advantage of invited error — Erroneous instruction to jury.
1. A party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make.
2. A reviewing court will not reverse a judgment of a trial court for an erroneous instruction given to the jury at the instance of the complaining party.
APPEAL from the Court of Appeals of Cuyahoga county.
This action was instituted in the Court of Common Pleas to recover damages for personal injuries the plaintiff claims to have suffered June 14, 1939, when a standing taxicab he was driving was struck from the rear by a second taxicab which likewise had been standing until struck from the rear by an automobile driven in a westerly direction by the defendant at the intersection of Detroit avenue and West 25th street in the city of Cleveland.
The trial resulted in a verdict and judgment for the defendant.
On an appeal to the Court of Appeals on questions of law the judgment was reversed and the cause was remanded to the trial court upon the sole ground that "under the facts of this case the giving of plaintiff's request No. 4 to the jury, although erroneous and favorable to plaintiff, coupled with the general charge on the same subject, left the jury with wholly inconsistent instructions.
The case is in this court for review by reason of the allowance of the defendant's motion to certify the record.
Messrs. Harrison Marshman, for appellee.
Messrs. McKeehan, Merrick, Arter Stewart, Mr. George William Cottrell, Mr. L.B. Davenport and Mr. A.E. Griffith, for appellant.
The single complaint of the defendant is the action of the Court of Appeals in granting the plaintiff a reversal of the judgment of the trial court for error in giving the jury a written charge requested by the plaintiff himself. The instruction was given to the jury before the argument and was worded as follows:
"If you find by the greater weight of the evidence that the plaintiff suffered any injury whatever as the direct result of the collision on the night of June 14, 1939, in which a Yellow cab was driven into his cab by contact with the defendant's car, it will be your duty to award to the plaintiff a verdict in such a sum as will give him full, fair, and complete compensation for all of the injury and loss which he has already suffered as the direct result of the collision and for all of the injury, disability, and loss which with reasonable certainty you find he will suffer in the future."
It is the well-settled rule that a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make. 5 Corpus Juris Secundum, 173, Section 1501; 3 American Jurisprudence, 427, 432, Section 876; 2 Ruling Case Law, 238, Section 198; 2 Ohio Jurisprudence, 640, Section 593. In the case of State v. Kollar, 93 Ohio St. 89, 112 N.E. 196, this court held:
"The law imposes upon every litigant the duty of vigilance in the trial of a case, and even where the trial court commits an error to his prejudice, he is required then and there to challenge the attention of the court to that error, by excepting thereto, and upon failure of the court to correct the same to cause his exceptions to be noted.
"It follows, therefore, that, for much graver reasons, a litigant cannot be permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment for an error for which he was actively responsible."
However, the plaintiff seeks to avoid the effect of this rule by insisting that the requested instruction was correct in assuming the defendant's negligence and that the Court of Appeals itself was mistaken in holding the charge erroneous. The plaintiff bases this contention on the theory that under the evidence the defendant was negligent as a matter of law, and therefore, as to this element in the plaintiff's case, there was no question of fact to submit to the jury. With this view this court finds itself unable to agree. A careful study of the evidence discloses circumstances that would have made it error for the trial court to hold the defendant negligent as a matter of law rather than to submit the question to the jury. It is true that there is no dispute as to many of the facts such as that it was dark, it was raining, the pavement was slippery, the taxicabs were standing still, and the traffic light was green; but the conclusion to be drawn from the facts is in very vigorous dispute.
The plaintiff insists further that even if the charge he requested was erroneous in his favor, he nevertheless was prejudiced by the fact that his erroneous charge was in conflict with the correct general charge-subsequently given by the court on the same subject, thereby confusing the jury and counsel as to the issues in the case. However this may be, the fact remains that he himself invited the error responsible for the conflict and confusion.
Finally, the plaintiff contends that the record discloses additional errors upon which the Court of Appeals should have reversed the unfavorable judgment of the trial court. The Court of Appeals affirmatively found that there were no other errors, and with this conclusion this court agrees.
The judgment of the Court of Appeals must be reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
MATTHIAS, ZIMMERMAN, BELL and TURNER, JJ., concur.
Hart and Williams, JJ., dissent.
I concur in the syllabus but dissent from the judgment on the ground that, in my opinion, the undisputed facts show a violation of the assured clear distance ahead statute.
The trial court properly gave to the jury the written charge requested by plaintiff before argument but committed error in its general charge and, therefore, the motion for new trial should have been sustained. As a consequence, the judgment of the Court of Appeals, in reversing the judgment of the Common Pleas Court and remanding the case for a new trial, should be affirmed.
Williams, J., concurs in the foregoing dissenting opinion.