Momenee v. Trupp , 1 Ohio Law. Abs. 501 ( 1923 )

CHITTENDEN, J.

Epitomized Opinion

This was an action for wrongful death brought by the father and administrator of Robert Momenee against one Krupp. The deceased child, Robert Mom-enee, who was about seven years old, was killed on or.c of the principal streets of Toledo wtúie. going home from school. The boy, together with another boy, was crossing the street at the time he was struck by an automobile owned and operated by defendant. The evidence was in conflict as to whether the two boys ran from behind a street car and the one struck before the defendant had an opportunity to stop his car. During the trial the court refused to permit the plaintiff to show that the car was being operated on wet and slippery streets without chains upon the ground that it was not alleged in the petition. No evidence was introduced showing that the car sk'dded or that it failed co =top 1 Clause of lack of chains. The jury returned a verdict in favor of the defendant. Judge Ritchie of the Common Pleas Court overruled a motion for a new trial, whereupon the plaintiff prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

Attorneys — C. A. Thatcher and C. A. Meek, for plaintiff; Fritsche, Kruse & Winchester, for defendant.

1. As the voir dire examination of veniremen is largely within the discretion of the trial court, no prejudicial error can be assigned in connection with such examination unless there is a clear abuse of discretion.

2. No prejudicial error is committed in the court’s refusal to permit- counsel to ask the jury if any of them were connected in any way with liability insurance.

3. As there was no evidence showing that the skidding of the automobile caused or contributed to the accident, no error was committed in the court’s refusal to allow the admission of evidence showing that the automobile was not equipped with chains, where that fact was not alleged in the petition.

4. It cannot be said as a matter of law that the verdict was manifestly against the weight of evidence.

5. If the court ccmmits error in its rub v"~i, counsel should take advantage of this fact by an exception, and counsel cannot complain of misconduct on the part of the trial judge if he engaged in an extended argument with the court in the presence of the jury.