Marietta & Cincinnati R. R. v. Strader & Co. ( 1876 )

By the Court.

Numerous special instructions were given to the jury at the instance of the parties; but of none of them can the plaintiffs in error complain.

"Where a party relies simply on a misdirection to the jury as a ground of reversal, his exception must be taken as required in article 5, title 9, of the code. And where the exception is to the general charge, the parts excepted to ought to be specifically pointed out at the time the exception is taken. Kline v. Wynne, 10 Ohio St. 223; Adams v. The State, 25 Ohio St. 584.

But where the ground of error is the refusal of the court to grant a new trial, in a case where the verdict is alleged to be against the law or evidence, and a bill of exceptions is taken under the act of April 12, 1858 (S. & C. 1155), embodying the charge as well as all the evidence, thé court, in determining whether a new trial oughtto have been granted, will look to the charge in connection with the evidence, whether it was excepted to or not, with a view of determining, under all the facts and circumstances of the case, whether substantial justice has been done, or a new trial ought to be granted. Kline v. Wynne, supra; Mowry v. Kirk, 19 Ohio St. 884.

Hence, it has been held that a new trial ought to be granted where, from a consideration of the whole evidence in connection with the charge, it is reasonable to suppose the jury may have been mislead by the charge, and that a different verdict would have been rendered if the jury had been properly instructed. Little Miami Railroad Co. v. Wetmore, 19 Ohio St. 110; M. & C. Railroad Co. v. Picksley, 24 Ohio St. 654.

The case was before the court in general term, under the act of April 12, 1858; and the question was, whether upon the whole case the court below erred in refusing a new trial.

After examining the whole record, we are of opinion that it did not, and that the court in general term erred in reversing the judgment.

Judgment of court in general term reversed, and that of the court in special term affirmed.