Valencic v. A. B. B. Rd. Co.

The Court of Appeals reversed the trial court's judgment on the sole ground that the court committed prejudicial error in failing to charge the jury upon the principle that if plaintiff's evidence raises a presumption of contributory negligence on his part, then before the plaintiff could recover this presumption must be dispelled by evidence of at least equal weight.

The sole query here is: Is the ruling sound?

There is no question that, except for this omission, the trial court charged the jury fully upon the defense of contributory negligence. Counsel did not call the court's attention to the omission, or request instructions on the omitted principle, either before or after argument, or specifically except to the failure to charge further.

At the conclusion of the charge the court stated: "Do counsel for the defendant think of any subject that the court should touch upon that he has not touched upon?" Counsel for defendant answered in the negative. The trial court then turned to the jury and said: "I do believe that I have given you instructions upon the law upon every conceivable theory of facts that may be necessary as presented by the issues in this case. You may retire to your jury room and proceed with your deliberations."

Counsel for defendant then said: "The defendant excepts to the general charge of the court and specifically excepts to each and every part thereof."

The principle that the plaintiff, before he can recover, must remove a presumption of contributory negligence arising from his evidence was declared in Ohio law at least as early as in the case of Baltimore Ohio Rd. Co. v. Whitacre, 35 Ohio St. 627. The rule has been explained and qualified in later decisions of this court and, in determining its proper application, must be considered in the light of the many decisions relating to the negligence of plaintiff as a factor directly contributing to his injury and damage. It is well settled that contributory negligence is an affirmative defense.Knisely v. Community Traction Co., 125 Ohio St. 131, 136,180 N.E. 654; Maddex v. Columber, 114 Ohio St. 178, 186,151 N.E. 56; Buell, Admx., v. New York Central Rd. Co.,114 Ohio St. 40, 50, 150 N.E. 422; Bradley v. Cleveland Ry. Co.,112 Ohio St. 35, 38, 146 N.E. 805; Makranczy v. Gelfand,Admr., 109 Ohio St. 325, 338, 142 N.E. 688; and that the burden of proving contributory negligence is upon the defendant.Knisely v. Community Traction Co., supra; Bradley v. ClevelandRy. Co., supra; Maddex v. Columber, supra; Glass v. WilliamHeffron Co., 86 Ohio St. 70, 98 N.E. 923; Columbus Ry.Co. v. Ritter, 67 Ohio St. 53, 65 N.E. 613; Schweinfurth,Admr., v. C., C., C. St. L. Ry. Co., 60 Ohio St. 215,54 N.E. 89; Baltimore Ohio Rd. Co. v. Whitacre, supra.

Like other affirmative defenses contributory negligence must be made out by a preponderance of the evidence and the burden of proof does not shift. Tresise v. Ashdown, Admr., 118 Ohio St. 307,316, 160 N.E. 898, 58 A. L. R., 1476; Schweinfurth,Admr., v. Railway Co., supra.

It is not necessary to dispel a presumption of contributory negligence, arising from plaintiff's evidence, by a preponderance of the evidence; but it is sufficient if the presumption is dispelled by evidence of equal weight.Tresise v. Ashdown, supra.

It is a well settled principle that each party is entitled to the benefit of evidence in his favor no matter which party offers it. This principle applies here. If the presumption is dispelled by evidence adduced, no more is required.Smith v. Lopa, 123 Ohio St. 213, 174 N.E. 735.

It is evident that the presumption referred to in the cases cited is not a presumption of law but a presumption of fact, or, as is often called, an inference. Under the authorities, if the plaintiff's evidence raised a presumption of contributory negligence, the jury could not return a verdict in his favor unless it found that the presumption had been overcome by opposing evidence of equal or greater weight, for it must be recognized that, if such a presumption is dispelled by evidence of equal weight, a fortiori it is overthrown by evidence of greater weight. However, as stated, evidence of equal weight is all that is required to destroy the presumption.

If counsel for defendant had submitted a request to charge upon this phase of the case, clothed in appropriate language, it would have been the duty of the trial court to give it; but, since no such request was made, and the charge as given was accurate and not misleading, the defendant has no just complaint as to the failure to give further instructions. If there was error at all, it was unprejudicial error of omission and not in any sense error of commission. Columbus Ry. Co. v.Ritter, supra; State v. McCoy, 88 Ohio St. 447, 450,103 N.E. 136; New York Life Ins. Co. v. Hosbrook, 130 Ohio St. 101,105, 196 N.E. 888.

The Court of Appeals committed prejudicial error in reversing the judgment of the Court of Common Pleas; therefore, the judgment of that court is reversed and that of the Common Pleas Court affirmed.

Judgment of Court of Appeals reversed and that of CommonPleas Court affirmed.

WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, MYERS and GORMAN, JJ., concur.