
    The Patton Motor Trucking Co. v. Knapp.
    
      Charge to jury — Written requests before argument to be given, when — Negligence—Request that recovery not implied by instruction upon damages, properly refused — Question for jury — Right of truck to travel over center of icy pavement —Charge to jury — Duty of approaching vehicle to turn to right — Collision between automobile and truck — Evidence — Conversation of driver immediately after accident, admissible as res gestae — Motion to strike out entire answer must specify erroneous portion — Insufficient truck lights question for jury.
    
    1. Written requests of law before argument must be given, if such requests contain propositions of law applicable and pertinent to issues raised by pleadings and evidence.
    2. In action for damages from collision of defendant’s truck with plaintiff’s automobile, requested instruction that court, by charging on damages, does not imply that court is of opinion that plaintiff should recover, was properly refused, since trial judge cannot express' opinion on any branch of case including question of damages.
    3. In action for damages from collision of defendant’s truck ' with plaintiff’s automobile, written request that truck had right to travel over center of pavement covered with slippery ice and worn down in center thereof held properly refused, since location of beaten path was question of fact for jury.
    4. In action for damages from collision of defendant’s truck with plaintiff’s automobile, written request that truck was not bound to turn to right until meeting another vehicle approaching from opposite direction, and, if such other vehicle was driven at such speed that truck could not turn to right before collision, there could be no recovery, held properly refused as erroneous.
    6. In action for damages from collision.of defendant's truck with plaintiff’s automobile, conversation by truck driver and another immediately after accident, in which driver admitted he was on wrong side of road, was admissible as part of the res gestae.
    
    
      6. In action for damages from collision of defendant’s truck with plaintiff’s automobile, where statement of truck driver was admissible in part as res gestae, overruling of motion to strike entire answer, not specifying erroneous portion, cannot be complained of in Court of Appeals.
    7. In action for damages from collision of defendant’s truck with plaintiff’s' automobile, where witnesses testified that they did not see truck but saw only dim lights, it was not erroneous to submit to jury issue of insufficient lights.
    (Decided November 6, 1926.)
    Error: Court of Appeals for Ashland county.
    
      Messrs. Waters, Andress, Southworth, Wise Maxon, for plaintiff in error.
    
      Mr. C. H. Worhman, for defendant in error.
   Houck, P. J.

This cause comes into this court on error prosecuted from the common pleas court of Ashland county. The parties here stand in an order the reverse of that held in the court below.

The plaintiff below, Samuel E. Knapp, filed his petition in the common pleas court of Ashland county against the plaintiff in error here, the Patton Motor Trucking Company, for damages to a Studebaker sedan, in the amount of $1,500. The damages claimed here are the result of a collision between the Knapp car and a White truck and trailer owned by the Patton Motor Trucking Company.

At the time of the collision, the Studebaker sedan was being driven and operated by the 19 year old son of the defendant in error. The collision occurred on the 4th day of February, 1925, on the 3 C’s Highway, between Hayesville and Loudonville, in Ashland county. The plaintiff below claimed damages in the sum of $1,500. However, as a result of the trial in the common pleas court, a verdict was returned by the jury in favor of the plaintiff Knapp, in the sum of $900.

The usual motion for a new trial was filed, heard, and overruled, and a judgment was entered on the verdict. The result of this judgment is a suit in this court upon the following grounds:

First. That the court erred in refusing to give special written requests Nos. 3, 6, and 7, before argument.

Written request No. 3 reads:

“It is the duty of the court'to instruct you as to the measure of damages under the law, but the jury will remember that, because the court charges you upon that subject, does not in any manner mean or imply that the court is of the opinion that the plaintiff is entitled to recover in this case, and the jury must not infer from such charges that the plaintiff is entitled to'recover.”

Written request No. 6 reads:

“The court says to you that, if you find from the evidence that the pavement was covered with slippery ice, and that it was worn down in the center thereof, so that the only safe portion for travel was the center of said pavement, and that said center of said pavement was the traveled portion of said highway, then I say to you that defendant’s truck had the right to travel over the center of said pavement.”

Written request No. 7 reads:

“The court further says to you that the driver of the truck had the right to travel in the center of said improvement, if you find that was the traveled portion thereof and the only portion on which it was safe to travel, and was not bound to turn to the right until meeting another vehicle approaching from the opposite direction. If you find that plaintiff’s car was being driven at such a speed that defendant, in the exercise of ordinary care, could not turn its truck and trailer to the right before plaintiff’s car collided with it and that such speed was negligence on the part of Bedford Knapp, which proximately caused the damage, and without fault of defendant, then I say to you that plaintiff is not entitled to recover, and your verdict should be for the defendant.”

The law in this state is well settled that written requests of law before argument must be given if such requests contain propositions of law applicable and pertinent to the issues raised by the pleadings and the evidence.

We are familiar and are well aware of the rule laid down by the Supreme Court in the case of Chesrown v. Bevier, 101 Ohio St., 282, 128 N. E., 94, the second syllabus reading:

“Upon a written request to charge before argument, if the request correctly states the law and is pertinent to one or more of the issues of the case and the same subject has not been covered by other charges given before argument, it is error to refuse to give such charge before argument, even though the language of the charge is not the exact language the court would have selected.”

We have examined each and all of the written requests above referred to, refused to be given in charge to the jury before argument, and coming to written request Ño. 3 will say that in our opinion this request is clearly objectionable in form as well as to the law applicable to the issues and proven facts in the case. Further, it is not within the province of the trial judge to express an opinion upon any branch of the case, including the question of damages. We therefore find that written request No. 3 was properly refused by the court.

As to written request No. 6, we are fully convinced that under the issues raised by the pleadings and under the proven and conceded facts this was not a proper instruction to be given to the jury, because it was a disputed question of fact as to tvhere the beaten path was, whether in the center of the road or on the side. Thus it follows that, if this request had been given in charge to the jury, it would have invaded the rights of the jury concerning one of the real questions of fact involved in this lawsuit.

Speaking of written request No. 7, we find and hold that the refusal of the court to give this instruction to the jury was not erroneous, for the reason that it does not correctly state the law as to the rights of travelers upon the public highway.

The second alleged error complained of is that the court erred in admitting testimony, which, in effect, conveyed to the jury the information that the truck of plaintiff in error was insured, and that the company insuring the same would settle or reimburse the defendant below for any damages resulting to the car of Knapp by reason of the collision between them.

The court permitted to be given in evidence a conversation between the truck driver and one Edmund Duval, immediately after the accident. The truck driver, immediately after the accident, walked over to the sedan and had a conversation with Edmund Duval and Bedford Knapp. The conversation had, and which was admitted in evidence, is as follows:

“The first thing he said when he came np, he asked us if we were hurt and where we were hurt and took our license number and gave us his and the driver’s name, and we got to talking it over, and he said, ‘You ought not to have much trouble with this; we were on the wrong side of the road, on the left-hand side; our car is insured, and the insurance company will take care of that.’ ”

We are clearly of the opinion that this conversation was a part of the res gestae, and was competent testimony to be offered in the case, unless it be the latter part of the conversation, as contained in the following words: “Our car is insured, and the insurance company will take care of that. ’ ’

A motion to strike out this answer went to the entire answer and not to the part just quoted. If the motion had been directed to the latter part of the answer, which concerned the insurance company, the plaintiff in error would be in a different position in this court at this time to urge the claimed error in the admission of the conversation in question. However, no motion having been filed to strike out that part of the testimony which might seem to be erroneous, it follows that counsel is in no position now to complain of the action of the court in overruling his motion to strike out the entire answer.

Did the court err in submitting to the jury the issue of insufficient lights?

Learned counsel for plaintiff in error in their brief say:

“The plaintiff claimed in his petition that the truck was equipped with dim and insufficient lights. However, admitted facts show that plaintiff’s driver could see the truck 200 feet away. This is all the statute requires, and we submit that the instruction on this ground of negligence when there was no issue is prejudicial error.”

In this claim we cannot agree with learned counsel. The testimony upon this branch of the case, as contained in the bill of exceptions, is that the witnesses did not see the truck. They saw what they designated as “dim lights.” They did not see the truck.

We have read with great care the charge of the trial judge in the case now under review, and we find same to be a clear and concise statement of the law governing the established facts in the case.

Further comment seems to us unnecessary, except to say that, upon a careful review of the entire record, it is the unanimous judgment of this court that the verdict of the jury, and the approval of same by the trial judge in overruling a motion for a new trial, are fully warranted, and we find no prejudicial error in the record justifying a reversal of this case.

Judgment affirmed.

Shields and Lemert, JJ., concur.  