Lemon v. Wiltberger

BY THE COURT:

Epitomized Opinion

First Publication of this Opinion

This case, arises from an application for re-? hearing. The opinion in the case at the former hearing will be found in 1 Abs. 846. The Court of'Appeals say "the matter of .pleading contributory'negligence has been" made •some--' what’difficult by recent decisions-of the-'-Supreme Court, but they have, however, adhered to the view the defendant is not compelled to admit negligence in order to plead contributory negligence. They think such a rule would be unjust to the defendant and inconsistent with the general rule that a defendant may plead as irfany defenses as he may have, providing they are not repugnant to each other. If the defendant cannot plead contributory negligence in the form presented in this c.ase, he cannot plead it in any ease without first admitting negligence. They do not find any decision of the Supreme Court that a plea of contributory negligence in this form may not be made.

Attorneys — Matthew L. Bigger, Columbus, for Lemon; Bradford & Jones, Columbus, for Wiltberger.

Counsel relies upon Glass v. Hefron Co., 86 OS. 70. There the plaintiff denied negligence by general denial and alleged the plaintiff’s negligence was the sole cause of the injury. The plea here goes further because it states that if the defendant was negligent, then the plaintiff was also negligent in causing the injury. The charge of contributory negligence in the present case was also proper under the second paragraph of syllabus of the Glass case. From plaintiff’s own testimony in the case at bar, the jury might have inferred that Lemon was negligent, consequently, the trial court was justified in charging upon the subject of contributory negligence. The recent cases sustain the proposition that an error is one part of a charge does not require a reversal if the charge, taken as a whole, is not misleading or incorrect. r

107 OS. 33; 98 OS, 42; 90 OS. 141. The former decision of this court is therefore adhered to.