
    Lindeman, Admx., v. Roche.
    
      Negligence — Charge to jury — Error to specify acts as constituting negligence or contributory negligence — Operating automobile at excessive speed — Error to charge upiOn acquiescence by guest of driver.
    
    1. It is error for a court, in its charge to the jury in a negligence case, to undertake to lay down a rule of conduct relating to specific acts involved and state which of such acts would constitute negligence or contributory negligence that would bar recovery.
    2. In an action against the owner and driver of an automobile for the wrongful death of a guest who was riding with defendant at the time of the accident, alleged to be due to the excessive speed and negligent operation of the car, it is prejudicial error for the court to charge the jury that if they find that decedent, at the time of and prior to the accident, acquiesced and consented to the speed at which the automobile was being driven, they should disregard speed as a possible element of negligence, and that if they find there was no acquiescence they should consider the question of speed in determining whether there was negligence, where contributory negligence is not pleaded as a defense and there is neither evidence to raise a presumption of contributory negligence nor any evidence that decedent acquiesced in or consented to the rate of speed.
    (Decided May 14, 1923.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Robert 8. Alcorn, for plaintiff in error.
    
      Messrs. Clore, Schwab & McCaslin, for defendant in error.
   Hamilton, J.

The plaintiff, administratrix, and her husband, Albert E. Lindeman, were guests of the defendant, Fred C. Roche, and were being taken home from defendant’s home in defendant’s automobile, Roche driving the machine, and Mr. and Mrs. Lindeman riding on the back seat.

Roche was driving westwardly along'Gilbert avenue, intending to turn north on a boulevard, but mistook a short blind street, and started to turn in, thinking it to be the boulevard turn. He discovered his mistake, and in turning the machine struck an electric light pole, tearing off the rear wheel of the automobile and throwing Mr. and Mrs. Lindeman from their seats, injuring Mr. Lindeman, from the effects of which he died.

The wife, Myrtle Lindeman, as administratrix, thereupon brought suit against the defendant, Roche, for wrongful death.

The charges of negligence were excessive speed and the negligent and careless operation of the car.

The case was submitted to a jury, which returned a. verdict in favor of the defendant. Plaintiff below thereupon prosecuted error to this court.

The error complained of is the general charge of the court, the objectionable part being as follows :

“As to the first contention of negligence, the court instructs you that one can not recover for injuries brought about by the doing of acts in which one acquiesces, or the doing of which he consents. It is a question of fact for your decision, just as any other question of fact in the ease, whether or not Albert E. Lindeman at the time of, and prior to the happening of the accident, acquiesced in and consented to the speed at which this automobile was being driven. If you find that he did then you will disregard the question of speed as a possible element of negligence, for in the event of such acquiescence as I have said, the plaintiff could not recover by reason of any excessive or negligent rate of speed at which the automobile was being driven.
“If you find that there was no such acquiescence you will consider this question of speed in determining the question of negligence or not.”

This proposition in the charge was repeated and emphasized at the close of the general charge. Exceptions were duly taken.

The charge was clearly erroneous, and in view of the allegation of negligence as to speed was prejudicial.

The answer did not allege contributory negligence on the part of the decedent, neither was there any evidence to raise the presumption of contributory negligence; nor was there any evidence that the decedent acquiesced in, or consented to, the speed of the car. "Why the court should have injected this question into the case, we are unable to understand. Further, we know of no case, nor has any been cited, where such a charge was given. While there is some suggestion in some of the text-writers that consent to an act of negligence might bar recovery, that situation carries the question into the general rule of conduct as to contributory negligence.

If the question of contributory negligence was in the case, the charge would he erroneous, as it fails to state the rule on the question of contributory negligence. The rule of law as to contributory negligence is so well settled that it is not necessary to discuss it here'.

Again, the charge is erroneous in that it undertakes to lay down a rule of conduct relating to specific acts involved, and undertakes to state which, of such acts would constitute negligence or contributory negligence that would bar recovery. This is in direct conflict with Toledo Rys. & Light Co. v. Mayers, 93 Ohio St., 304, and Commissioners of Logan Co. v. Bicher, Admx., 98 Ohio St., 432. It was a question for the jury to determine upon all the facts of the case whether or not the guest used due care under all the circumstances. As the court said in Commissioners v. Bicher, supra, it is in every case the function of the jury to determine from the facts shown whether the injured person used such care, and what care the circumstances required.

For error in the gene ml charge, the judgment of the Superior Court of Cincinnati will be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Cushing and Buchwalter, JJ., concur.  