Siff v. M. O'Neil Co.

Washburn, P. J.

Jean V. Siff, a young child, brought suit by her father, as next friend, against The M. O’Neil Co., to recover damages caused by an injury which she claimed to have suffered while riding in her father’s automobile, which was being driven by her uncle.

The automobile was being driven east on Market street, and was being closely followed by a light truck of The M. O’Neil Co., driven by one of its employes.

As the vehicles reached, or nearly reached, the street leading to the union depot, the automobile turned to the left, across Market street, and the truck ran into the rear left side of the automobile, and plaintiff was injured by being out on her face by flying glass.

The claim was made that the collision was caused by the negligence of the truck driver, and the defense was made that the accident was due solely to the negligence of the driver of the automobile.

The verdict and judgment were for the defendant company. Two errors are urged in this court: first, that the judgment is manifestly against the weight of the evidence; and, second, that there was error in the charge of the court.

We have read and considered the evidence and are unanimously of the opinion that the judgment is not so manifestly against the weight of the evidence as to warrant a reviewing court in reversing the case on that ground.

As to the charge of the court, under the laws of Ohio plaintiff was entitled to recover if the truck driver’s negligence caused or contributed to cause the injuries, even though the automobile driver’s negligence also contributed to cause the injuries. The negligence of the automobile driver, with whom plaintiff was riding as a guest, was of controlling importance only in the event such negligence was the sole cause of the injuries, but the circumstances warranted a specific charge of the court that if the injuries were caused by the combined and concurring negligence of the two drivers plaintiff could recover. However, the court was not requested to so charge; in fact, no request to charge was made by plaintiff.

The court did charge that if the truck driver was negligent, and such negligence was the proximate cause of plaintiff’s injuries, she could recover, but that if the jury found that plaintiff’s injury “was solely caused by the negligence of the driver” of the automobile in which plaintiff was riding, she could not recover.

This charged the law correctly as far as it went, and in the absence of a request to charge specifically that plaintiff could recover if the concurring negligence of both drivers combined to cause the injury, it was not error for the court not to so specifically charge.

If a charge as given is free from error, the fact that the court failed to give other instructions which properly might have been given, is not ground for reversal, unless such other instructions were requested.

“A general exception to the charge of the court as now permitted by Section 5298, Revised Statutes, is effectual only as to errors of law existing in the charge as given, and does not bring in review on error, an omission or failure to give further proper instructions.” Columbus Railway Co. v. Ritter, 67 Ohio St., 53.

We make no attempt to cite the many cases in Ohio where this rule is applied.

Judgment affirmed.

Pardee and Funk, JJ., concur.