Opinion
No. 8407.
December 9, 1940. Rehearing Granted January 15, 1941. For opinion on rehearing, see 117 F.2d 702.
Appeal from the District Court of the United States for the Northern District of Ohio; Frank Le Blond Kloeb, Judge.
See, also, 26 F. Supp. 812.
Fraser, Effler, Shumaker Winn, of Toledo, Ohio, and Knepper, White Dempsey, of Columbus, Ohio, for appellant.
Cable Cable, of Lima, Ohio, for appellees.
Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.
This cause came on to be heard upon the record and briefs, and oral argument of counsel; and it appearing to the court that while no evidence of appellant's contributory negligence was presented, and therefore the District Court erred in charging the jury upon the question (Sheen v. Kubiac, 131 Ohio St. 52, 1 N.E.2d 943; Cleveland Ry. Co. v. Heller, 15 Ohio App. 346), the error was not prejudicial, for the evidence is both substantial and persuasive to sustain a finding by the jury that the proximate cause of the accident was the sole negligence of the driver of the automobile in which appellant was riding as a guest passenger. It is ordered, adjudged and decreed that the judgment of the District Court be, and it hereby is, affirmed.