
    Weybright v. Fleming.
    1. In an action to recover damages for an injury to the person through the. alleged carelessness of another, it is error to use language in the charge from which the jury might reasonably infer that the court assumed the existence of material facts that were in dispute.
    2. A special exception to the charge is not in all cases necessary, before a reviewing court will look to the charge, and reverse the judgment, and award a new trial. Baker v. Pendergast, 32 Ohio St., 494, approved and followed.
    Error to the District Court of Miami County.
    
      G-unclcel Rowe, for plaintiff in error.
    The ground of error was the refusal to grant a new trial for the reason that the verdict was against the law and the evidence. The bill of exceptions in this case was taken under the act in Yol. 75, Ohio Laws, page 668, sec. 5. This act is identical with the act of April 12, 1858 (S. & C., 1155) which the court passed upon in determining that it had the legal right to review the charge. M. $ Q. R. R. Oo. v. Strader, 29 Ohio St., 448; P. G. St. L. Ry. v. Porter, 32 Ohio St., 328. In such case the charge can be reviewed even though no exception was reserved thereto. Baker v. Pendergast, 33 Ohio St., 494.
    
      The court erred in using language in its charge which was calculated to lead a jury to infer a state of facts not warranted by the evidence, and which in fact were in dispute. (Thompson on charging the jury, sec. 47, and the various authorities cited.)
    The charge undeniably had a tendency and was calculated to influence the jury, and should be reversed. Washington Ins. Oo. v. Merchants Ins., 5 Ohio St., 450; Key v. Denney, 18 Ohio St., 254; L. M. JR. JR. Oo. v. Wetmore, 19 Ohio St., 110; MJowry v. Kirie, 19 Ohio St., 383 ; Schneider v. Hosier, 21 Ohio St., 98; Mulford v. Qlewell, 21 Ohio St., 191; M. $ O. JR. JR. Oo. v. Piclesley, 24 Ohio St., 654.
    
      A. JR. Dyrleett, also for plaintiff in error.
    
      Qraighead ‡ Oraighead, for defendant in error.
    There is no proper exception to the charge complained of. All that is shown by the record in reference to the matter is that “ the charge was reduced to writing, a copy of which is hereunto attached marked exhibit ‘ H.’ and made a part hereof — to which charge the defendant excepted.” This we insist is not sufficient. It is too general. It is unfair to the court and to opposing counsel. It does not inform either of the particular objection intended to be made, or of the reason for such objection. Adams v. The State, 25 Ohio St., 584, 587; Servis v. Stoclestill, 30 Ohio St., 419; Railway Oo. v. Probst, 30 Ohio St., 104; Powers v. Railway Oo., 33 Ohio St., 430.
    It is said however, that the want of a proper exception to the charge in this case is of no consequence, because the record shows all the proof, the charge of the court, and that a motion for a new trial, based partly on the allegation that the verdict was against the law and the evidence, was overruled, and exceptions thereto saved — and that, in such, case, the whole record, including the charge, whether excepted to or not, is open for examination.
    Within certain limitations this is true. It is admitted that, under such circumstances, the whole record may be looked into for the purpose of ascertaining — not merely whether the precise law was given in the charge or elsewhere — but whether, in view of everything connected with the case, error, to the prejudice of the complaining party has intervened. It is no difference what errors are found, the court will not disturb the judgment below unless the justice of the matter’clearly requires it; 10 Ohio St., 228. And, so far as the charge is concerned in such case, there is really nothing for review other than what we must assume was considered upon the motion for a new trial, under the general objection that the verdict was against the law; 32 Ohio St., 330.
   Dickman, J.

This case comes before us lipón a petition in error, to reverse the judgment of the district court affirming a judgment of the court of common pleas in favor of the plaintiff, in an action wherein Zelora Fleming, an infant by his next friend Silas W. Coble was plaintiff, and Benjamin Weybright was defendant. In the original petition, it was alleged, that the defendant was the owner and in possession of a heavily loaded wagon drawn by two horses, which by himself and his servant he managed so carelessly and negligently, as to cause the plaintiff, an infant aged four years, to be thrown with great violence from the brake of the wagon upon the ground, and to be run over by the wagon, whereby his right leg was broken and his person in other respects greatly bruised and wounded, and his health and strength permanently impaired. The plaintiff further alleged, that there was no negligence or carelessness on his part; that from the injuries he received he became and was sick for seventeen weeks, and suffered great bodily pain, and was forced to expend a large sum of money in endeavoiing to be cured of his pain and injuries; that notwithstanding his said endeavors, he still remained and would continue to remain a cripple for life — the result of the defendant’s carelessness and negligence.

The defendant denied each and every allegation in the plaintiff’s petition, except that the plaintiff was hurt and injured. Upon the trial in the court of common pleas, the jury rendered a verdict for the plaintiff, and assessed his damages in the sum of twenty-five hundred dollars, upon which judgment was entered.

Among the material facts in dispute before the jury, were the facts that the plaintiff had been crippled for life, that his health and strength had been permanently impaired, and that he would not consequently be able to perform man ual labor in the future as well as he would if the accident bad not occurred.

These facts the court virtually assumed to exist, and accordingly gave in charge to the jury, the following instructions:

“You may allow him (the plaintiff) for all the injuries and damages he has sustained, taking into consideration the expenses necessarily attending his illness and clisabilitj'-, for the services of physicians and others, and all other necessary expenses, the physical pain endured by.him and yet to be endured, the mental suffering arising necessarily out of his brooding over and dwelling upon the injury received, and its effect upon his future health and prospects; the effect of his injuries in the future; in depriving him of the use of his crippled limb; his certain inability to labor and attend to his affairs, and generally to pursue the course of life he might have done except for this disability, growing out of the defendant’s negligence. The plaintiff may recover, not only the amount of damage which he suffered prior to the commencement of the action, but-also all the damage, proceeding continuously from the injury complained of, either in body or in mind, which he has suffered up to the verdict, and which it is reasonably certain, that he will suffer in the future, naturally and necessarily arising from the injury received by him.”

In thus charging the jury we are of opinion that the court erred, and that the charge was prejudicial to the plaintiff in error.

Without intimating an intention on the part of the court to bias the jury, we are constrained to the belief, that the aforegoing portion of the charge, alone and in connection with the remainder thereof, tended to mislead and bias the jury in favor of the plaintiff, and to impress upon them as proven, material facts in the case that were in dispute.

It is contended by the defendant in error, that the exception by the defendant to the charge of the court was a general one, and therefore not sufficient. The exception it is true was not special. But the record shows, that a motion for a new trial was made on the ground that the verdict was against the law and the evidence, and that the overruling of that motion’was assigned for error; and that all the evidence offered on the trial, together with the charge of the court, has been properly brought up by a bill of exceptions. When such is the case, a reviewing court will, in connection with the evidence, look to the chaz-ge of the court, whether excepted to or not; and if there is reason .to believe that the verdict was the result of erroneous instructions, will reverse the judgment and award a new trial. Baker v. Pendergast, 32 Ohio St., 494, approved and followed.

Judgments reversed, and cause remanded.  