
    No. 694
    PARKER v. YOUNGSTOWN MUNICIPAL RY.
    Ohio Appeals, 7th District, Mahoning County
    Decided March 16, 1923
    367. TRIALS.
    Misconduct of jury in viewing damaged car (47) cannot be taken advantage of unless complained of at trial.
    Antonelli and Nicholson & War- , for Parker; Harrington, DeFord, Huxley & Ford, for Youngstown Municipal Railway.
   ROBERTS, J.

Epitomized Opinion

The motorcycle on which Parker was riding collided with street car of Railway Co. Parker was riding his motorcycle with side car attached on the right-hand side of the street as he approached the street ear. He changed his course, crossed the track and was riding upon the devil strip when a chain, which was attached to the rear fender of the street car, struck Parker in the shoulder and threw him from the motorcycle, causing serious injury. Parker contended that it was necessary to change his course because of the dangerous condition of the pavement,

Rt the evidence disclosed (hat there was only a de-ession in the pavement. Near the conclusion of e trial and over the objection of Parker, the court permitted the jury to view the street car. At this view some of the jurors in inspecting the car took hold of the chain and tested it to determine how far the loop of the chain would swing beyond the side of the car. Counsel for both sides were present when this was done, but no complaint was made later to the trial judge. The Court of Appeals in affirming the judgment for the Railway Co. held:

1. An exception cannot be recognized when not complained of at the trial. It was the duty of. counsel if they sought to. claim anything on the ground of misconduct of the jury in viewing the car, to have immediately, advised the trial court of what had taken pi ce so that the court might, if thought proper, declared a new trial, discharge the jury, or give the jury instructions so as to eliminate any errer in the conduct of the jury.

2. There was no condition of the pavement requiring Parker to leave the right-hand side where he could proceed in safety so far as the-street car was concerned and to pass over and ride upon the devil  