
    No. 914
    DILLWORTH v. CLEVELAND RY. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6260.
    Decided March 10, 1926
    Judges Mauck, Sayre & Middleton, 4th Dist., sitting.
    225. CHARGE OF COURT — Where special charge is necessary such charge must be requested.
    Attorneys — Friebolin and Byers for Diliworth; Squire, Sanders & Dempsey for Company; all of Cleveland.
   BY THE COURT.

Anna Dillworth brought this action in the Cuyahoga Common Pleas to recover damages resulting from an injury sustained by her when an automobile in which she was riding as passenger collided with a street car .operated by the Cleveland Railway Co.

Her petition alleged that the injury was due solely to the negligence of the motorman. The answer was a general denial.

The court in its charge to jury charged as follows:

“* * * If you find that the plaintiff has proven by a preponderance of the evidence the negligence of the defendant Company, and that the negligence of the defendant Company was the proximate cause of injury to her, and has proven her resultant damages, then in that event your verdict will be for the plaintiff.”

Judgment being rendered for the Company, Dillworth prosecuted error, stating that the court erred in its charge in as much as the charge as stated permitted no recovery in case injury was caused by both the negligence of the company and of the driver of automobile. Court of Appeals held:

1. If Dillworth desired the court to 'charge in regard to liability in the event of the negligence of both driver and company, such charge should have been requested.
2. The charge as stated, correctly shows the liability of the Company in case it was negligent.

Judgment affirmed.  