Opinion
No 26524
Decided February 16, 1938.
Negligence — Duty to dispel presumption of contributory negligence raised by plaintiff's evidence — Omission to charge jury not prejudicial error — Instruction not requested, and charge accurate and not misleading.
In an action for negligence, the failure of the trial court to instruct the jury that, if the plaintiff's own evidence raises a presumption of contributory negligence on his part, he cannot recover unless such presumption is dispelled by evidence of at least equal weight, does not constitute prejudicial error when no request is made for such an instruction and the charge is otherwise accurate and not misleading.
CERTIFIED by the Court of Appeals of Summit county.
On March 27, 1934, at about 6:15 a. m., an automobile in which the plaintiff was riding and which was owned by him and operated under his express direction by his son, collided with a backing engine and tender of the defendant, The Akron Barberton Belt Railroad Company, at a point on Wooster Road (an improved thoroughfare at Barberton, Ohio) where the road crosses the defendant's tracks at grade.
At the time of the collision visibility was low due to rainy and misty weather.
The plaintiff brought an action against the defendant in the Court of Common Pleas of Summit county, Ohio, to recover damages to his person and property growing out of the collision. The cause was tried twice. The jury disagreed the first time and on the second trial a verdict was returned for the plaintiff in the sum of $3,500. Judgment was entered on the verdict.
On an appeal on questions of law, the Court of Appeals reversed the judgment and remanded the cause for a new trial, but certified the record of the case to this court on the ground the decision was in conflict with the decisions of the Court of Appeals of Hamilton county in the cases of Tudor Boiler Mfg. Co. v. Teeken, 33 Ohio App. 512, 169 N.E. 704, and Smith v. Thoms, 55 Ohio App. 174, 9 N.E.2d 172.
Messrs. Harrison Marshman, Mr. Harry N. Van Berg and Mr. Fred A. Dewey, for appellant.
Messrs. Waters., Andress, Wise, Roetzel Maxon, for appellee.
The Court of Appeals reversed the trial court's judgment on the sole ground that the court committed prejudicial error in failing to charge the jury upon the principle that if plaintiff's evidence raises a presumption of contributory negligence on his part, then before the plaintiff could recover this presumption must be dispelled by evidence of at least equal weight.
The sole query here is: Is the ruling sound?
There is no question that, except for this omission, the trial court charged the jury fully upon the defense of contributory negligence. Counsel did not call the court's attention to the omission, or request instructions on the omitted principle, either before or after argument, or specifically except to the failure to charge further.
At the conclusion of the charge the court stated: "Do counsel for the defendant think of any subject that the court should touch upon that he has not touched upon?" Counsel for defendant answered in the negative. The trial court then turned to the jury and said: "I do believe that I have given you instructions upon the law upon every conceivable theory of facts that may be necessary as presented by the issues in this case. You may retire to your jury room and proceed with your deliberations."
Counsel for defendant then said: "The defendant excepts to the general charge of the court and specifically excepts to each and every part thereof."
The principle that the plaintiff, before he can recover, must remove a presumption of contributory negligence arising from his evidence was declared in Ohio law at least as early as in the case of Baltimore Ohio Rd. Co. v. Whitacre, 35 Ohio St. 627. The rule has been explained and qualified in later decisions of this court and, in determining its proper application, must be considered in the light of the many decisions relating to the negligence of plaintiff as a factor directly contributing to his injury and damage. It is well settled that contributory negligence is an affirmative defense. Knisely v. Community Traction Co., 125 Ohio St. 131, 136, 180 N.E. 654; Maddex v. Columber, 114 Ohio St. 178, 186, 151 N.E. 56; Buell, Admx., v. New York Central Rd. Co., 114 Ohio St. 40, 50, 150 N.E. 422; Bradley v. Cleveland Ry. Co., 112 Ohio St. 35, 38, 146 N.E. 805; Makranczy v. Gelfand, Admr., 109 Ohio St. 325, 338, 142 N.E. 688; and that the burden of proving contributory negligence is upon the defendant. Knisely v. Community Traction Co., supra; Bradley v. Cleveland Ry. Co., supra; Maddex v. Columber, supra; Glass v. William Heffron Co., 86 Ohio St. 70, 98 N.E. 923; Columbus Ry. Co. v. Ritter, 67 Ohio St. 53, 65 N.E. 613; Schweinfurth, Admr., v. C., C., C. St. L. Ry. Co., 60 Ohio St. 215, 54 N.E. 89; Baltimore Ohio Rd. Co. v. Whitacre, supra.
Like other affirmative defenses contributory negligence must be made out by a preponderance of the evidence and the burden of proof does not shift. Tresise v. Ashdown, Admr., 118 Ohio St. 307, 316, 160 N.E. 898, 58 A. L. R., 1476; Schweinfurth, Admr., v. Railway Co., supra.
It is not necessary to dispel a presumption of contributory negligence, arising from plaintiff's evidence, by a preponderance of the evidence; but it is sufficient if the presumption is dispelled by evidence of equal weight. Tresise v. Ashdown, supra.
It is a well settled principle that each party is entitled to the benefit of evidence in his favor no matter which party offers it. This principle applies here. If the presumption is dispelled by evidence adduced, no more is required. Smith v. Lopa, 123 Ohio St. 213, 174 N.E. 735.
It is evident that the presumption referred to in the cases cited is not a presumption of law but a presumption of fact, or, as is often called, an inference. Under the authorities, if the plaintiff's evidence raised a presumption of contributory negligence, the jury could not return a verdict in his favor unless it found that the presumption had been overcome by opposing evidence of equal or greater weight, for it must be recognized that, if such a presumption is dispelled by evidence of equal weight, a fortiori it is overthrown by evidence of greater weight. However, as stated, evidence of equal weight is all that is required to destroy the presumption.
If counsel for defendant had submitted a request to charge upon this phase of the case, clothed in appropriate language, it would have been the duty of the trial court to give it; but, since no such request was made, and the charge as given was accurate and not misleading, the defendant has no just complaint as to the failure to give further instructions. If there was error at all, it was unprejudicial error of omission and not in any sense error of commission. Columbus Ry. Co. v. Ritter, supra; State v. McCoy, 88 Ohio St. 447, 450, 103 N.E. 136; New York Life Ins. Co. v. Hosbrook, 130 Ohio St. 101, 105, 196 N.E. 888.
The Court of Appeals committed prejudicial error in reversing the judgment of the Court of Common Pleas; therefore, the judgment of that court is reversed and that of the Common Pleas Court affirmed.
Judgment of Court of Appeals reversed and that of Common Pleas Court affirmed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, MYERS and GORMAN, JJ., concur.