Wagar v. Smith

MIDDLETON, J.

Virginia Smith brought suit against Mars Wagar in the Cuyahoga Common Pleas seeking to recover damages for injuries sustained in a collision between a machine in which she was riding and the one driven by Wagar; and which collision, it was alleged, was due to the negligence of Wagar.

Judgment was rendered in favor of Smith and error proceedings were instituted wherein Wagar claimed that the court erred in permitting counsel for Mrs. Smith, during part of his time for argument, -to make an argument to the court and in the presence of the jury with reference to certain legal matters claimed to be applicable to the facts in the case and in support of which he read to the court, in the presence of the jury, several’ decisions and authorities.

Counsel for Wagar objected at the time to this argument, and the court in passing upon the objection said to the jury, in substance, that he would give them the law in the case and that they must follow the law as given by him; that the remarks being made by counsel were for the court’s benefit; and the court thereupon overruled the objection.

The Court of Appeals held:—

1. There was no error in the action of. the court in this behalf. Not only did the court call the jury’s attention at the time to their duty and the court’s duty in the matter; but the argument was presented directly to the court and not to the jury. This practice is supported’ by the authorities.

2. “Law books are. cited and used as evidence — and it would seem to be reasonable an,d the correct doctrine that this evidence should be addressed to the court — and not the jury; but we see no objection to this being done in the hearing of the jury — etc.” McGuire v. State, 3d Circuit Court, at page 555.

Attorneys — Ford & Kiefer for Wagar; B. J. Hopple for Smith; all of Cleveland.

3. Failure of counsel for Wagar to request further specific instructions on the subject of the negligence of the driver of the machine in which Mrs. Smith was riding, precludes them now complaining; but the matter was clearly placed before the jury so that there is no reason to believe they did not understand the legal relation of both drivers.

4. There is such conflict in the evidence that a reviewing court would not be warranted in holding that the verdict is against the manifest weight of the evidence, and that the jury was manifestly wrong in believing either the statements of the plaintiff and her witness, or the defendant, in the trial below.

Judgment is affirmed.

(Mauck, PJ., concurs.)