
    No. 632
    LINDEMAN v. ROCHE
    Ohio Appeals, 1st District, Hamilton County
    No. 2134.
    Decided May 14, 1923
    This opinion has not been published except, m \ * -ir
    WRONGFUL DEATH — Erroneous charge as to duty of passenger in automobile — Acts to which guest consents — Excessive speed and careless operation of car — Negligence not to be defended — Due care of guest.
    Attorneys — R. S. Alcorn, for Lindeman; Clore, Schwab & McCaslin, for Roche.
   HAMILTON, J.

Epitomized Opinion

Mr. and Mrs. Lindeman were thrown from their seats when Roche drove his car, in which they were riding, into an electric light pole, Mr. Lindeman receiving injuries from which he died. She brought this action for wrongful death and charged, as negligence, excessive speed and careless operation of the car. Jury rendered a verdict for defendant. Court’s charge to jury is assigned as error. It charged that recovery cannot be had for injuries from acts to which one consents; if you find Lindeman acquiesced in and consented to the speed the automobile was driven, you will disregard the question of speed as an element of negligence. Answer did not allege contributory negligence and there was no evidence that deceased acquiesced in or consented to speed of automobile. In reversing the judgment the Court of Appeals held:

1. This charge was clearly erroneous and was prejudicial in view of allegation of negligence as to speed.

2. Even if the question of contributory negligence wsa in the case, the charge would be erroneous as it fails to state the rule on the question.

3. Charge is erroneous because it undertakes to lay down rule of conduct relating to specific acts involved, and undertakes to state what would constitute negligence or contributory negligence barring recovery. This is contrary to 93 OS 304, 98 OS. 432.

4. It was for the jury to determine on all the facts of the case whether or not the guest used due care under all circumstances.  