
    No. 420
    MARION CHAFFEE v. W. H. FURLONG
    Ohio Appeals, 9th Dist., Cuyahoga County
    No. 160.
    Decided April 30, 1923
    This opinion has not been published except in Abstract.
    NEGLIGENCE — CHARGE TO JURY — (1) Duty of court to charge on question of contributory negligence when it is not made an issue by pleadings.
    : Attorneys — Irving' Carpenter, for Chaffee; F. G. Jones, for Furlong. ,.
   CHITTENDEN, J.:

Epitomized Opinion

This was an action brought by Chaffee to recover damages sustained to his automobile. Three automobiles were traveling along the same highway at the same time and in the same direction. The first was owned by defendant, the second by another person, and the third by plaintiff. The plaintiff and the driver of the car directly in front of him attempted to pass the defendant’s automobile. The driver of the second car sounded his horn and the first'machine turned out to let him pass, and he did pass safely. Then the plaintiff sounded his horn and attempted to pass the defendant. Plaintiff claimed that instead of turning his car to the side of the road, the defendant turned his car to the left directly in front of him, and in order to avoid a collision, plaintiff turned his car off the road, hitting a bridge.. The plaintiff’s car was badly damaged. The trial resulted in a verdict for the defendant. Plaintiff prosecuted error, claiming that the court erred in charging on the question of contributory negligence when that question was not raised by the pleadings. In affirming t'he correctness of the charge, the Court of Appeals held:

1. When the subject of contributory negligence is introduced in a case by the evidence properly offered by the parties in support of their respective claims as made in the pleadings, the issue oi; contributory negligence thus raised is to be determined by tne same rules as to burden of proof, it becomes the duty of the court to charge on the question 'of contributory negligence, and its failure to do so would be prejudicial error. • ,  