Bradley v. Rapid Transit

I fully concur in the opinion of the majority except as herein noted.

In my opinion neither special instruction No. 1 nor No. 2, requested by the defendant, represents a correct statement of the law. In both, the court was to instruct the jury that plaintiff could not recover if plaintiff's "negligence contributed to [or in] the slightest degree to the proximate cause of his injuries."

It is axiomatic that contributory negligence of a plaintiff will not bar his recovery unless such negligence "directly" or "proximately" caused his injuries. The vice of the language of the above instructions is that it bars recovery if plaintiff's negligence merely "contributed" to the proximate cause of his injuries. It fails to require that such "contribution" be a direct or proximate contribution. See McNees v. Cincinnati StreetRy. Co., 152 Ohio St. 269, 89 N.E.2d 138. The language of these charges should be compared with the language approved in Chesrown v. Bevier, 101 Ohio St. 282,128 N.E. 94 ("negligence directly contributed in the slightest degree to the injuries"), and in Bartson v. Craig, 121 Ohio St. 371,169 N.E. 291 ("negligence directly * * * contributed in the slightest degree to cause the injuries").

While I agree with the interpretation being made of the language of Section 11420-17, General Code, I do not agree that this court should be bound by the decision of the Indiana Supreme Court in Toledo Wabash Ry. Co. v. Goddard, 25 Ind. 185, as representing the "settled construction" of "a statute * * * adopted from another state." That case was decided in 1865, many years after similar statutory language interpreted therein and in the instant case had in 1853 become a part of the law of this state. (51 Ohio Laws, 102.) That language, as now contained in Section 11420-17, General Code, provides that the jury in certain instances is "to find upon particular questions of fact, to be stated in writing."