
    No. 172
    KELCIK, etc. v. CLEVELAND RY. CO.
    Ohio Appeals 8th Dist., Cuyahoga Co.
    No. 7016.
    Decided Jan. 24, 1927
    871. OPENING STATEMENTS — Where a motion to direct a verdict is made upon the opening statement of counsel, every opportunity should be given to amend, explain or supplement the statement so that, if possible, it may be allowed to stand.
    First Publication of this Opinion
    Attorneys — V. J. Pugher for Kelcik; Squire, Sanders & Dempsey for Company; all of Cleveland.
   SULLIVAN, J.

Joseph Kelcik, a minor, brought suit in the Cuyahoga Common Pleas against the Cleveland Railway Co. by his next friend, for personal injuries sustained resulting from a collision between a truck and a car of the company. It . is claimed that the lower court committed error in sustaining a motion of the Company to direct a verdict, warrantable in law under the plaintiff’s opening statement. The Court of Appeals, on error proceedings, held:

1. It is well settled that where a motion is directed upon the opening statement of counsel, upon apparent failure to state a cause of action, counsel should be given every opportunity to amend, explain or supplement his statement so that, if possible, it may be brought within the purview of the law; and a liberal construction should be given the statement so that, if possible it may be allowed to stand.

2. It appears, however, that in the instant case, neither in the petition nor in the opening statement, is there any claim of specific negligence excepting that it is asserted as a conclusion of law, that because there was a collision, there is a presumption of negligence on part of the Company.

3. This case is not within that class of cases where that principle prevails, because the street car was on the track and the truck along the highway collided with it.

4. Consequently a situation arose which made it necessary to specifically aver the negligence of the. Company, so that a recovery might be had in the absence of any contributory negligence as a matter of law attributable to the plaintiff.

5. There was no oral or written evidence to support the motion for a new trial on the ground of newly discovered evidence and therefore this matter is beyond the pale of consideration.

Judgment affirmed.

(Levine, PJ., concurs.)  