
    No. 385
    No. 18794
    Thomas Hanna v C W Stoll.
    Error to the Court of Appeals of Cuyahoga county.
    923. PLEADING—In negligence case, rejection of unpleaded city ordinance of traffic regulations, as evidence, held to be error.
    829. NEGLIGENCE —As to burden of proof being on defendant to show that plaintiff’s negligence was approximate cause of collision and injuries, and also as to alleging and proving by either party of negligence of other party.
   MATTHIAS, J.

1. In the trial of an action for damages resulting from the collision of motor vehicles at a city street intersection, the petition having averred that negligence of the defendant in the operation of his motor bus caused the collision and resulting injuries, and the defendant by answer having denied negligence upon his part and asserted that plaintiff’s injury resulted solely from his own negligence, the rejection of duly enacted and existing ordinances of the city constituting its traffic regulation's, tendered by the defendant, which there was evidence tending to show defendant observed and plaintiff disregarded, is error though such ordinances were not pleaded by the defendant.

2. Where impairment of earning capacity is pleaded as special damages, it is essential that evidence be adduced from which an estimate thereof may be made by the jury, and in the absence of any evidence upon the subject it cannot properly be submitted to the jury as an element of damages.

.3. In the submission of ,"an issue joined as above stated it is error prejudicial to the defendant to instruct the jury that “the burden of proof is upon the defendant to prove the negligence of the plaintiff and • to prove that the negligence of the plaintiff was the proxi'-mate cause of the collision and the proximate cause the injuries, if any, plaintiff suffered;” and also that “negligence on the part of either party must be alleged by the other party and must be proven by the party alleging it by a preponderance of the evidence.”

Judgment reversed.

Marshall, C. J., Jones., Day, Allen, Kinkade and Robinson, JJ., concur.  