Jones v. Mohler

WASHBURN, P. J.

This special finding of the jury, of course, precludes the idea that a general verdict was found for Mohler on the ground that he did not back his automobile into the ladder, because if he did not do that, he could not have been guilty of negligence, as found by the jury.

The jury having specifically, and as we think rightly, found that Mohler was negligent and that such negligence was a proximate cause of the injury to Jones, should have returned a verdict for Jones; and it is perfectly plain that the reason that was not done was because of the charge of the court on contributory negligence.

An examination of the answer shows that contributory negligence was not plead, and a careful examination and consideration of the record leads us to the unanimous conclusion that there was no evidence tending to prove that Jones was guilty of contributory negligence.

It is thus made apparent that the error committed by the court in charging upon the subject of contributory negligence and submitting a special interrogatory to the jury on that subject, was prejudicial to Jones, and for that error the judgment will have to be reversed. This error ' was so fundamental and all-embracing in its effect upon the trial as to render it unnecessary and unprofitable to say more in disposing of the case.

For error in charging upon and submitting to the jury the question of contributory negligence of Jones, the judgment is reversed and the cause remanded for retrial.

(Funk, J., and Pardee, J., concur.)