
    No. 881
    LAMON v. WILTBERGER
    Ohio Appeals, 2nd District, Franklin County
    No. 1143.
    Oct 8, 1923
    Jf7. AUTOMOBILES.
    Agency of driver held question for jury.
    268. NEGLIGENCE.
    Word “contributory” not necessary to raise issue of contributory negligence.
    172. EVIDENCE.
    Volunteered testimony not binding on party producing witness.
    Attorneys — M. L. Bigger, Columbus, for plaintiff; Bradford & Dones, Columbus, for defendant.
   ALLREAD, J.

Epitomized Opinion

Plaintiff alighted from a street car, started across the street and was struck by defendant’s automobile, which was driven by defendant’s daughter, defendant being in the rear seat. The trial court left to the jury the question whether the driver of the automobile was the agent of the owner. The question of the care exercised by both parties was submitted to the jury, the court instructing that if plaintiff was guilty of contributory negligence he could not recover.

One of the defendant’s witnesses volunteered some information regarding an insurance agent. The trial court ruled that testimony out. Verdict and judgment for defendant. Plaintiff prosecuted error, contending that the trial court erred in the chargei on contributory negligence because defendant’s pleading did not allege “contributory” negligence and only that the injury resulted' from plaintiff’s negligence; and that there was error in ruling out the testimony volunteered by defendant’s witness. Held:

The question of -agency as to the driver of the car was properly left to the jury. The word “contributory” is not necessary in a pleading to raise the issue of contributory negligence, and the court’s charge with relation thereto was- correct. The volunteered testimony was properly ruled out, since it was not binding on the party who produced the witness. Judgment affirmed.  