Aretz v. Rue ( 1995 )

I respectfully dissent. I would overrule all three assignments of error. The trial court fully considered all the issues raised by the evidence, and after spirited argument by counsel, it committed those issues to the province of the jury.

A trial court does not err by giving a jury an instruction on contributory negligence if the issue "was raised in the pleadings and supported by some evidence." (Emphasis deleted.)Tyrrell v. Invest. Assoc., Inc. (1984), 16 Ohio App. 3d 47, 50, 16 OBR 50, 53-54, 474 N.E.2d 621, 625. The record in this case indicates that Ramon Aretz placed the television set inside a spare tire within the van, even though he admitted that he could have used plastic wrap, bungee cords or cargo nets to keep the load from shifting or becoming airborne. The court did not err by giving the comparative negligence instruction.

The trial court also properly denied the appellants' motion for a directed verdict on the comparative negligence issue. As there is substantial evidence in the record, particularly adduced in the cross-examination of Ramon Aretz, from which to infer that he failed to secure properly the television set despite his knowledge of other effective means to do so, reasonable minds could come to more than one conclusion on appellee's claim of comparative negligence. Therefore, I would not disturb the court's denial of appellants' motion for a directed verdict. Civ.R. 50(A); Strother v. Hutchinson (1981),67 Ohio St. 2d 282, 21 O.O.3d 177, 423 N.E.2d 467; Ruta v.Breckenridge-Remy Co. (1982), 69 Ohio St. 2d 66, 69, 23 O.O.3d 115, 116-117, 430 N.E.2d 935, 938.

Finally, I would overrule the appellants' third assignment of error challenging the manifest weight of the evidence adduced to support the jury's verdict. In a civil case, a judgment entered on a properly rendered jury verdict will not be reversed as being against the manifest weight of the evidence if it is supported by some competent, credible evidence. Myers v. Garson (1993), 66 Ohio St. 3d 610, 614 N.E.2d 742; Seasons Coal Co. v.Cleveland (1984), 10 Ohio St. 3d 77, 80, 10 OBR 408, 411,461 N.E.2d 1273, 1276; C.E. Morris Co. v. Foley Constr. Co. (1978),54 Ohio St. 2d 279, 8 O.O.3d 261, 376 N.E.2d 578, syllabus. The weight to be given the evidence and the credibility of the witnesses are for the trier of fact to determine. State v.DeHass (1967), 10 Ohio St. 2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. The record reveals some competent, credible evidence adduced to support the jury's verdict that Ramon Aretz was contributorily negligent in causing his own injury. I would affirm the entry of judgment by the trial court.