
    No. 54
    YOUNGSTOWN MUN. R. v. ETINGER
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Oct. 29, 1924
    225. CHARGE TO JURY—1. Special request assuming facts in issue held erroneous.
    2. Request containing direction for court rather than for jury, held erroneous.
    355. DAMAGES—Verdict for $5,000 for breast injury held not excessive.
    115. STREET RAILWAYS—Special request stating that motorman has right to’ assume that people will not drive on tracks between intersections, held erroneous.
    Published only in Ohio La'w Abstract
   POLLOCK, J.

Epitomized Opinion .

This was an action for personal injuries. The plaintiff claimed that the municipal tracks were some inches below the pavement in Albert street in Youngstown; and that because of this condition he was unable to turn his automobile out of the street car tracks in order to avoid a collision with a car. The municipal company claimed that there was no depression and that the accident was caused through the failure of the plaintiff to ¡look in the direction he was going. At the close of the trial the court refused to give ceftain requests of the defendant. One of these requests provided in part: “The defendant ^. . . could not change the position of the same while the plaintiff could.”

Another request refused provided: “And the court further says to| you that nothing in the general charge of the co.urt, which is not in writing, is to be considered or understood by the jury as in any manner qualifying, modifying or explaining the written charges given before argument, which the jury will have with them in the jury room for their guidance.” Another request provided: “The motorman ..... has a right to assume that persons on the street will not go upon the track in front of his car, and is not required to anticipate that any one upon the street would continue upon the track directly in front of him.” The trial resulted in a verdict for plaintiff, whereupon defendant prosecuted error. In sustaining teh judgment, the court of appeals held:

Attorneys—Harrington, DeFord, Huxley & Smith, for Railway Co.; John Ruffalo and Leo S. Wilkoff, for Etinger; all of Youngstown.

1. As the plaintiff claimed that he could not get out of the street car track because of depressed condition, a special request which states that he could do so is clearly erroneous, as it assumes a fact which was in controversy.

2. A charge which contains a direction for the Court rather than for the jury is erroneous.

3. A request which states that a motorman has a right to assume that people will not drive upon the track between intersections is clearly erroneous.

4. It cannot be said that the verdict was manifestly against the weight of the evidence.

5. A verdict of $5,000 for a breast injury, which renders plaintiff susceptible to pleurisy cannot be said to be excessive in amount.  