
    No. 583
    MATLES v. JASINSKI
    No. 20521.
    Supreme Court.
    On mo. to cer.
    Dock. 5-6-27;
    5 Abs. 314.
    480. EVIDENCE — Statutes.—Where in the first of two proceedings in error prosecuted from judgment of lower court, the Court of Appeals reverse the case on the grounds of the judgment being against the weight of the evidence and because of prejudicial error in the court’s charges, is the Court of Appeals, justified in refusing to review the evidence in a second proceeding in error upon the weight of the evidence?
    Attorneys — -Leigninger and Church for Mat-lés; Metcalf and Stankiemcz for Jasinski; all of Youngstown.
   This is an action for damages arising out of personal injuries sustained by John Jasinski when struck by an automobile owned and operated by Morris Mattes. Upon its original trial in the Mahoning Common Pleas, a verdict was obtained by Jasinski. Error proceedings were prosecuted to the Court of Appeals where the case was reversed upon the grounds, “That the verdict was contrary to and manifestly against the weight of the evidence and that the Court committed error prejudicial to defendant below in his general charge to the jury.”

The cause was remanded and retried in the Court of Common Pleas where a smaller verdict was secured by Jasinski and upon a change of testimony by the plaintiff as to his conduct at the time of the accident.

Motion for a new trial was again overruled and the cause again carried to the Court of Appeals on proceedings in error; that Court refusing to review the evidence upon the ground that: “Having heretofore reversed the judgment of the Court of Common Pleas upon the weight of the evidence this Court is without jurisdiction to review or reverse the judgment of the Court of Common Pleas again upon the weight of the evidence and the power of this Court to reverse upon the weight of the evidence has been exhausted and this Court therefore does not pass upon the weight of the evidence.”

There being no further errors apparent upon the record the judgment of the lower Court was affirmed.

It is the contention of Mattes, in the Supreme Court that 11577 FC. under the interpretation of the Court of Appeals is not only inconsistent with, but in direct conflict with Article 4, Section 6 of the Constitution of the State of Ohio-, insofar as it provides for the review of judgments of the Court of Common Pleas, and that it clearly abridges the right of a litigant to prosecute error.

It is contended further that under the most liberal interpretation of this section that if but one reversal upon the weight of the evidence is authorized, then that reversal must have been upon the sole ground of the verdict being manifestly against the weight of the evidence, and the case otherwise being entirely free of reversible error.

In the case at bar the original cause would have been reversed by the Court of Appeals because of errors in the trial court’s charge had the evidence never been weighed or considered, and therefore, was not such a reversal as contemplated by statute.  