Pheils v. Toledo city , 8 Ohio Law. Abs. 328 ( 1930 )

WILLIAMS, J.

We hold that the verdict is not manifestly against the weight of the evidence in the cases brought by Smith and Colburn. The evidencei of the defendants' tends to show that the speed of the car as it approached the cinder portion of Parker Avenue was 35 to 40 miles per hour, and that the young lady in the wrecked car had been drinking intoxicating liquor. This evidence, coupled with that as to the condition of the street, would warrant the jury in drawing the inference that the occupants of the car were on something of a lark and therefore riot ordinarily careful. Helen Croker herself did not testify and perhaps she would have contradicted the statements as to her use of alcoholic beverages, had she done so. In weighing the evidence, however, we take the record as we find it. The jury may well have based its verdict for the defendant and against the plaintiffs Smith and Colburn upon the theory that Smith and Colburn were each guilty of contributory negligence in the way they conducted themselves as they approached this point of great danger. The same thing might be said as to Textor, but counsel are making no claim against the weight of the evidence..

The case of Dr. Pheils has a different aspect. He was not present, and as the driver, who had possession of the car, was merely a bailee, Dr. Pheils can not be barred of recovery for damage to the car by the contributory negligence of the driver. Gfell vs. Jefferson Hardware Co., 10 Ohio App. 427. All the- evidence adduced tended to show negligence on the part of the city in failing to protect or guard the street at the point of the precipice so as to make it reasonably safe for public travel, and as to Dr. Pheils we are of the opinion that the verdict is manifestly against the weight of the evidence.

The judgment in favor of the city and against Dr. E. H. Pheils is reversed and the cause remanded for a new trial, and as to other plaintiffs in error, the judgments are .affirmed.

Lloyd and Richards, JJ., concur.