Cincinnati Traction Co. v. Cochran , 20 Ohio App. 108 ( 1923 )

The action was for damages against the Cincinnati Traction Company and the Norfolk Western Railway Company for injuries received as a result of their joint negligence. Plaintiff obtained a judgment for three thousand dollars against the defendants jointly, and error is prosecuted to reverse that judgment.

Three grounds of error are assigned.

First. That the verdict of the jury was illegal, for the reason that the damages were apportioned, and the judgment entered thereon was a joint judgment.

Second. That the court erred in overruling the motion of the Norfolk Western Railway Company to dismiss it from the cause, such motion being made at the conclusion of plaintiff's evidence, and renewed at the conclusion of all the evidence.

Third. That the verdict was excessive.

The first and third assignments of error are urged by both defendants; the second, only by the Norfolk Western Railway Company.

The verdict of the jury was as follows:

"We, the jury, being duly impaneled and sworn and affirmed, find the issues in this case in favor of the plaintiff, and assess the amount, due to the plaintiff from the defendants, the said the Cincinnati Traction Company and the Norfolk Western Railway Company, at the sum of Three Thousand ($3,000) dollars, equally divided.

"And we do so render our verdict upon the concurrence of twelve members of our said jury, that being three-fourths or more of our number. Each of us said jurors concurring in said verdict signs his name, hereto this thirteenth day of November, 1922."

The judgment rendered on the verdict was a joint judgment against both defendants in the sum of three thousand dollars. The verdict and judgment based thereon are claimed to be contrary to law because of the insertion of the words, "equally divided," in the verdict; that this was a several and not a joint verdict and that the court had no authority to render a joint judgment on a verdict which was several.

Without discussing the authorities cited, we refer to the case of Cincinnati Traction Co. v. Story, 19 Ohio App. 370, wherein it was held that the phrase "equally divided," in a similar verdict, was surplusage, and that it was not reversible error to enter a joint judgment on such a verdict. We adhere to this rule.

Second. The allegations and proof were to the effect that the negligence of the Cincinnati Traction company, together with the negligence of the rail-way company, brought about the situation which caused certain passengers to jump from the street car in an endeavor to save themselves from serious injury. The speed of the train, or the question of whether or not the signal was sounded in time, would not of itself have produced this situation. Were it not for the fact that at that time the car of the traction company was on the railroad track, neither without the other would have produced the danger. The acts of both created the situation.

The Norfolk Western Railway Company did not call any witnesses in its behalf to rebut the evidence as to negligence of its agents. We consider that there was sufficient evidence of negligence as against it to warrant the submission of the case to the jury.

Third. We find that the verdict and judgment are, however, against the weight of the evidence, in that the amount, of the damages in the sum of three thousand dollars is not supported by the evidence. An examination of the record leads to the conclusion that the evidence in this case will not support a verdict exceeding two thousand dollars.

If the defendant in error will remit the sum of one thousand dollars from the judgment, the judgment will be affirmed. Otherwise, the judgment will be reversed on the weight of the evidence.

Judgment accordingly.

CUSHING and HAMILTON, JJ., concur.