
    No. 618
    SMITH v. HEIDECKER et
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1523.
    Decided May 25, 1925
    1235. VERDICT—1. Where a new trial has been granted in Common Pleas for verdict being contrary to the weight of evidence, the Appeals cannot set it aside upon the same ground.
    2.Where two issues arising on same cause of action are submitted to jury, and no disclosure upon which the verdict 'was based, judgment not to be reversed.
   WILLIAMS, J.

Louis Smith instituted suit in the Lucas Common Pleas against William and Tillie Hei-decker for a collision of his machine and that of the Heidecker’s. A verdict was returned in favor of Heidecker and error was prosecuted to the Appeals.

In the error proceedings, Smith claimed that the verdict was against the weight of the evidence; that the court erred in its charge to the jury; that the court erred in- failing to give the law as to the presumption which would arise from a speed in excess of 30 miles per hour, under 12603 GC., that the court erred in refusing to give several requested charges. The Court of Appeals held:

1. Since there was a new trial granted in the Common Pleas court on the ground of the verdict was against the weight of- the evidence, this court is without power to set aside the verdict again upon that ground. Cleveland Ry. Co. v. Trendel, 101 OS. 316.

2. The court erred in failure to charge with regard to the presumption as there was evidence in the record tending to show that the car in which Heideckers were riding exceeded 30 miles per hour. But error in this respect related wholly to the defense under the general denial to the claim made by Smith that the Heideckers were guilty of negligence which was the proximate cause of his damage.

3. In view of the fact that there was a general verdict for the Heideckers and no findings by the jury, the conclusion of the jury may well have been based upon the theory that Smith himself was guilty of contributory negligence, and therefore not entitled to recover.

4. Where two issues rising on a single cause of action, are submitted to the jury, and a general verdict is returned for defendant, which might have been returned on either or both of such issues, and there is no disclosure upon which issue or issues the jury based its verdict, a judgmentshould not be reversed though there may have been error in the instruction of the court as to the law relating exclusively to one of such issues. Judgment affirmed.

Attorneys—Southard, Rowe and Williams and Stuart S. Wall for Smith; Doyle and Lewis for Heidecker; all of Toledo.  