Opinion
No. 41248
Decided March 27, 1968.
Appeal — Prejudicial error required to support reversal — Special request to charge — Refusal to give — Prejudicial error not disclosed by record — Negligence — Motor vehicles.
CERTIFIED by the Court of Appeals for Franklin County.
This is an action to recover damages for injuries caused by the alleged negligence of the defendant. The plaintiff, a minor, was riding a bicycle which was struck by the defendant's car when the defendant attempted to pass the bicycle as the plaintiff turned the bicycle left into a private driveway.
The trial court refused to give a special instruction requested by the plaintiff, which dealt with the standard of care to be exercised by defendant in passing plaintiff on his bicycle, and was phrased in the language of Section 4511.27, Revised Code. The court, in its general charge, instructed the jury that the defendant was negligent as a matter of law. The jury returned a general verdict for the defendant.
The Court of Appeals reversed the judgment and held that the trial court erred in not instructing, as the plaintiff had specially requested, on the standard of care established by Section 4511.27, Revised Code.
On the ground that its judgment in the instant case was in conflict with the judgment in Zink v. Contris (1961), 116 Ohio App. 95, 186 N.E.2d 865, the Court of Appeals certified the record to this court for review and final determination pursuant to Section 6, Article IV of the Ohio Constitution.
Plaintiff filed a cross-appeal, contending that error resulted from the trial court's refusal to give other special instructions which the plaintiff requested.
Messrs. Volkema, Redmond Post and Mr. Joseph A. Marchese, for appellees.
Messrs. Hamilton, Kramer Myers, Mr. Joseph R. Hague and Mr. Robert L. Summers, for appellant.
The trial court instructed the jury that the defendant was negligent as a matter of law. Therefore, it was not reversible error for the court to refuse to give the plaintiff's requested special instruction on the standard of care required of the defendant by Section 4511.27, Revised Code. Smith v. Flesher (1967), 12 Ohio St.2d 107, 233 N.E.2d 107 (paragraph two of the syllabus); McFadden v. Galena Shale, Tile Brick Co. (1967), 10 Ohio St.2d 70, 225 N.E.2d 229; Hallworth v. Republic Steel Corp. (1950), 153 Ohio St. 349, 91 N.E.2d 690. See Section 2309.59, Revised Code.
The alleged errors complained of by the plaintiff in his cross-appeal do not require discussion.
For the foregoing reasons, the judgment of the Court of Appeals is reversed and final judgment is entered for the appellant.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.