Miamisburg v. Blackburn

ON REHEARING'

Decided Aug 28, 1933

By THE COURT

The above entitled cause is now being determined on application of plaintiff in error for rehearing on decision rendered August 3, 1933. Memoranda accompany the application.

The first question submitted challenges the statement made in the original opinion as to the evidence being conflicting as to whether or not Blackburn inadvertently came in contact with the wire and as a result thereof fell, or whether he was falling and grabbed the wire to prevent or break his fall.

We have re-examined the record and now repeat that the evidence is conflicting to the point that it will admit of either conclusion. The statement made by Blackburn that he was balancing himself to keep from falling on the coal or down to the ground, does not necessarily mean that he was in the act of falling.

On the second ground set out in the application, we would call attention to page 10 of the original opinion, starting at the seventh line from the top and continuing to the end of that paragraph.

We reiterate that the uncontradicied testimony in the case shows that Blackburn was more than a mere licensee.

We recognize the general rule that where the burden is upon the plaintiff to establish an issuable fact it is always a jury question, even to the point of whether or not they believe the uncontradicted testimony. Counsel are now invoking this principle in their application íqv rehearing. We think §11364 GO fully meets the contention. We also make reference to the very recent case of Hoare v City of Cleveland, 126 Oh St, 625, also reported in Ohio State Bar Association Report under date of August 21, 1933, at page 625; also in the Ohio Law Bulletin and Reporter under date of August 21, 1933, at page 369.

The motion for rehearing will be overruled.

HORNBECK, PJ, KUNKLE and BARNES, JJ, concur.