Sparrow v. Edwards , 72 Ohio Law. Abs. 473 ( 1953 )

OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court overruling the defendant-appellant’s motion for new trial. Seven alleged errors are assigned, to wit:

(1) The judgment was not sustained by sufficient evidence and against the manifest weight thereof.

(2) Said judgment and decree was contrary to law.

(3) Error of law on the part of the Court in admitting in evidence a certain exhibit after the close of the case and arguments of counsel.

(4) Error of the Court in reopening the case and permitting the introduction in evidence of a certain exhibit as rebuttal evidence on the part of plaintiff.

(5) Error of the Court in going to the scene of the accident and viewing the same without the knowledge or consent of counsel or parties to the action after the close of the case.

(6) Abuse of discretion on the part of the Court in viewing the scene of the accident and admitting in evidence a certain exhibit after the close of the evidence and arguments of counsel.

(7) Error of the Court in permitting counsel for plaintiff in his argument to refer to and quote from various cases in the Common Pleas Court of Franklin County as bearing upon the amount of damages to be awarded by the Court.

It will be noted that a bill of exceptions is necessary to pass on these assignments, but none has been filed. We do find in the record a written statement, unsigned, that upon the close of the case the same was continued to some future date for argument during which time the trial judge visited the scene of the accident; also that at the time of the argument the Court permitted the plaintiff to reopen the case and offer a plat into evidence; also that in argument the Court permitted counsel for plaintiff to refer to certain cases decided by the Common Pleas Court of Franklin County wherein certain damages were allowed. This statement is foreign to the record and may not be considered on this appeal, but even if it were properly before the Court it could not be helpful to this appellant as it merely indicates that the Court made the visitation for the purpose of better understanding the evidence which was properly before the Court. This was neither error nor contra to the rules announced in the cases of City of Columbus v. Carter, 39 Abs 271, and Webster v. Pullman Co., 51 Oh Ap 131. The matter of reopening the case and permitting evidence to be offered in rebuttal as well as the citations in the argument rested within the sound discretion of the trial court which we think was properly exercised.

The judgment will be affirmed.

HORNBECK, PJ, WISEMAN and MILLER, JjS, concur.