Bauman v. Hanlon

CUSHING, J.

The charge, as given, gave the jury the greatest latitude in determining the question of facts presented. When applied to the issues made by the pleadings in the case at bar, the charge was correct.

Counsel for plaintiff in error argues that the court should have charged on the custody and use of the caps. This would have the effect of injecting into the case an issue introduced by the evidence, but different from that presented by the pleadings.

We are not unmindful of the line of cases which hold that where a, petition, charges negligence, and the answer pleads negligence on the part of the plaintiff, and the testimony warrants the inference of contributory negligence, it then becomes the duty of the court to charge upon the question of contributory negligence.

But we know of no general rule of law that requires a court to charge on an issue not made by the original pleadings or by any amended pleadings, but which merely happens to have been injected into the case by the testimony.

For the reasons above stated, the judgment of the Court of Common Pleas of Hamilton County, Ohio, is affirmed.

(Hamilton, PJ., and Mills, J., concur.)