Ohio Handle & Manufacturing Co. v. Jones

McCulloch, C. J.

(dissenting). Instruction numbered 3D, requested by the defendant, was a negative one, telling the jury in substance that if Barnett, the off bearer, was not negligent, but that the injury occurred by reason of the slab falling on the carriage and being drawn 'back against the saw by the act of plaintiff’s intestate, then the plaintiff could not recover. The effect of it was to tell the jury that if Barnett was not negligent -the plaintiff could not recover. The court erroneously modified it by inserting the words imputing negligence on the part of plaintiff’s intestate, but this did not change the instruction so as to make the plaintiff’s right to recover depend otherwise than on the negligence of Barnett. The court in two instructions specifically told the jury that the plaintiff could not recover unless -the injury was caused by Barnett’s negligence. The jury could not have been misled. I am cleaidy of the opinion that the erroneous modification was not prejudicial to defendant, and that the judgment should be affirmed.