
    No. 14
    SHREVE v. BURK (Next friend)
    Ohio Appeals, 7th Dist, Mahoning County
    Decided Oct. 5, 1923
    118. AUTOMOBILES — Instruction that driver should slacken speed and not injure pedestrians on crosswalk, held erroneous— Owner is not liable for negligence of employee outside of employment.
    1195. TRIAL — Attorney, and not the judge, should conduct examination of witness.
    Attorneys — Harrington, DeFord, Huxley & Smith, Youngstown, for Shreve; W. P. Speidel, Youngstown, for Burk.
   POLLOCK, J.

Epitomized Opinion

First Publication of this Opinion

This action was brought in the Mahoning Common Pleas by defendant in error Burk, a minor, for whom a verdict was returned against Shreve, the owner of the truck driven by one Routh.

Shreve operated a taxicab and motor business in Beloit and had one Routh, age 21, as an operator of one of the busses and as a mechanic. Routh drove Shreve’s Ford truck to Alliance, and when returning drove his truck into Elizabeth Burk, age 7, at a street crossing. The evidence disclosed that an automobile turned from the cross street into the street along which Routh was driving, but the automobile turned to the left instead of the right-hand side of the street and Routh struck the girl in turning out for the auto.

The court charged the jury that it was the duty of a party operating an automobile, under any circumstance, not to injure pedestrians crossing at intersections of streets and that when a pedestrian was on a cross walk the driver should slacken or stop the machine, and that a party is more liable for injury to children than to grown persons.

The evidence disclosed, though there was some conflict, that Routh borrowed this Ford truck from Shreve to drive to Alliance to purchase a second-hand car for Routh. One of the witnesses was examined at length by the court, and his questions were in the form of cross-examination. The jury returned a verdict for Burk. In revers’ng the judgment the Court of Appeals held:

1. The court’s charge to the jury was erroneous because prejudicial to Shreve and sufficient to reverse the case.

2. The verdict was against the weight of evidence because at the time of the accident Routh was not operating the car in the employ of or on the business of Shreve. 88 O. S. 18.

3. The court may ask questions of a witness, but we think it should be rather infrequently indulged in. It would have been much better if the court had permitted the attorney to conduct the examination.  