
    No. 166
    RINEHART, Admr. v. FURNACE CO.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1236.
    Decided Dec. 12, 1924.
    1066. SCINTILLA RULE—Applicable to evidence in wrongful death case.
    1235. VERDICT—Should not be directed unless there is absence of evidence tending to prove negligence, or unless the contributory negligence of injured party is clearly established.
    Published only in Ohio' Law Abstract
    Attorneys—F. S. Monnett, and Chas. R. Doll for Rinehart; Joseph McGhee and Arnold & Wright for Furnace Co., all of Columbus.
   ALLREAD, J.

Epitomized Opinion

This was an action for wrongful death instituted in the Franklin Common Pleas. The decedent, Sarah Rinehart, had alighted from a street car, passed around the rear thereof and attempted to cross to the other side of the street when, according to the claim of the Admin., she was struck and killed by a Ford Coupe, driven by an agent of the Wellston Iron Furnace Co. At the close of the plaintiff’s evidence the court directed a verdict against him. Rinehart raised the question that the directed verdict was not proper under the evidence.

The court held it was upon Rinehart to prove:

1. That the driver of the automobile was the agent of the Furnace Co.

2. That the machine so driven struck and killed the decedent.

3. That the driver was negligent; such negligence resulting in the injury and death of Sar.ah Rinehart.

4. That evidence offered by the plaintiff does not infer contributory negligence on the part of the decedent.

Rinehart claims that these issues raised in the case and should have gone to the jury.

The Court of Appeals, on review of the record said:

1. Sheward, the driver of the automobile testified as to his agency, showing he was the agent of the Furnace Co.

2. One Fallon testified that the decedent was struck by the machine driven by Sheward.

3. As to negligence, the driver testified that he did not see decedent until she was lying in the street; other witnesses testified, however, that Rinehart deceased was plainly seen as she came from the rear of the car.

4. As to the question of contributory negligence; it is mingled with the last chance doctrine. Evidence tended to show that the driver, if he had been diligent, could have avoided striking decedent, had he veered to the side.

These issues were all for the jury to determine. Rinehart in the Court below was entitled under the scintilla rule the most favorable construction that could be placed upon any of the evidence offered. The province of weighing the evidence is exclusively for the jury. McMurtie v. Wheeling Traction Co. 107 OS 107.

There is some evidence tending to support the material issues of Rinehart’s case, but that evidence does not establish contributory negligence as a matter of law. Judgment was reversed and cause remanded for a new trial.  