Doran v. Hempey , 6 Ohio Law. Abs. 622 ( 1928 )

MAUCK, J.

In the general charge the court discusses only those principles of law that obtain as between the injured person and the person committing the injury. The plaintiff had, however, by her first special instructions, before argument, secured from the court this direction to the jury.

This special instruction adequately presented the plaintiff’s view of the case so far as primary negligence was concerned and the trial court was not bound to repeat the principle referred to in its general charge. Plaintiff was, however, entitled to an instruction to the effect that the mother in attempting to rescue the child from peril, should not be charged with any errors of judgment in the manner in which she effected or attempted to effect the rescue resulting from the excitement and confusion of the moment.

Plaintiff made a request of this character at the conclusion of the general charge and the trial court was wrong in refusing to give it. The requested instruction however, went only to the single defense of contributory negligence.

Now, as we have already pointed out, there were at least two, possibly three, separate issues of fact for the determination of the jury. The verdict was a general one and we are unable to determine upon which of these issues the verdict turned. It may be that the jury found that the defendants were guilty of no negligence at all. If so, under the peculiar rule that obtains in this State, error that went only to the defense of contributory negligence is not sufficient to warrant a reversal. This rule of course is too well established to require comment.

Sites v. Haverstick, 23 OS. 626.

Jones v. Erie Railroad Co., 106 OS. 408.

The manifest error in the case is therefore unavailable to the plaintiff in error.

(Middleton, PJ., concurs.)