Laub v. Murphy

OPINION

By WILLIAMS, J.

We find one error committed by the trial court and that was in excluding evidence as to intoxication of the defendant at the time of the accident. The trial court took the position that unless the intoxication of the defendant was pleaded, no evidence of it could be introduced into the record. As the defendant was driving the north-bound car at the time, it was error to exclude evidence as to his intoxication, even though it u'as not in fact pleaded. The facts and circumstances surrounding a transaction involved in litigation aro, as a general rule, admissible in evidence as a part of the res gestae. The fact that the driver of a car which collides with another is intoxicated, would be competent as bearing upon the question as to what caused the collision, as W'ould be the fact that such driver was crippled or had fainted or was suddenly stricken ill, or any similar fact. It is also competent to ask a witness on cross-examination, who has testified to the transaction, whether he was intoxicated at that time, as bearing upon his powers of observation and recollection, and it would riot be necessary to plead the fact of intoxication, in order to make it competent.

This court has. had the question of the admissibility of evidence as to intoxication under consideration in Haylett v McCreary, 38 Court of Appeals Opinions, Sixth District, unreported, p. 313, (12 Abs 550) and Simonsky, Admr., v Zwyer, 40 Oh Ap, 275, (10 Abs 12). We think what is said in this opinion is wholly consistent with the language used in those decisions.

Under 86310-18, GC, a vehicle meeting another vehicle approaching from the opposite direction is required to pass to the right. Under the peculiar circumstances of this case, and especially in view' of the fact that the plaintiff turned to the left in violation of the statute, this court is of the opinion that the plaintff w'as guilty of contributory negligence as a matter of law and that substantial justice has been done, notwithstanding the erroneous rulings above referred to, and that such error on the part of the trial court w'as harmless error..

For the reasons given the judgment will be affirmed.

Judgment affirmed.

RICHARDS and LLOYD, Jj, concur.