Opinion
No. 68-173
Decided December 31, 1968.
Negligence — Motor vehicle — Charge to jury — Burden of proof.
APPEAL from the Court of Appeals for Holmes County.
On August 27, 1962, an accident occurred two miles south of Tiverton, in Coshocton County, Ohio. As the appellee, Thompson, rode his motor scooter south on state Route 206 he rounded a curve and collided with a tractor-trailer truck being driven by an employee of the appellant.
Thompson brought a negligence action against the appellant, who owned the truck involved. The question of fact for the jury was the position of the vehicles at impact. Both Thompson and the appellant's truck driver testified, each saying that the other's vehicle was left of the centerline.
Among the special instructions given to the jury by the trial court was the following, instruction number 5:
"If you find that the plaintiff failed to prove that defendant was negligent or if you find that plaintiff failed to prove the defendant's negligence, if any, proximately caused plaintiff's injury, or if you are unable to determine how the accident happened, then your verdict must be for the defendant."
The verdict and judgment were for the defendant. Upon appeal to the Court of Appeals the judgment was reversed. That court held that giving this instruction was predudicial error because it was ambiguous, misleading, and not relevant to the issues of the case.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Graham Graham and Mr. Thomas Bopeley, for appellees.
Messrs. Pomerene, Burns, Milligan Frase, Messrs. Schuler, Miller Schuler and Mr. Raymond Miller, for appellant.
The instruction given is nearly identical with one approved by the Ohio Judicial Conference. See 1 Ohio Jury Instructions 309, Section 21.10(a). The phrase specifically complained of by the appellee as it there appears is, "or if you are unable to determine how the accident happened then your verdict must be for the defendant." This phrase appears repeatedly throughout Chapter 21 of the Ohio Jury Instructions. See Sections 21.10(a) and (c), 21.30(c), 21.50(d) and 21.60(d). As we view it, the charge is an admonition against guessing, a way of saying that if the proof on both sides of a question is left in equipoise the party with the burden of proof must lose. See Bradley v. Cleveland Ry. Co., 112 Ohio St. 35, 40. Compare 1 Ohio Jury Instructions 141, Section 3.50(d).
Since this is as it should be, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS and BROWN, JJ., concur.
O'NEILL, HERBERT and SCHNEIDER, JJ., dissent.