
    Maddex et al. v. Columber.
    
      Jurors—Resident and taxpayer not disqualified in action against municipality—Section 1HS7, General Code—Negligence—Injuries sustained upon defective sidewalk—Charge to jury—Burden of proof—Burden of disproving contributory negligence not upon plaintiff, when.
    
    1. In a civil action against a municipal corporation, for damages for personal injuries sustained upon a defective sidewalk, the fact that a proposed member of the jury is a resident and taxpayer of such municipal corporation does not disqualify him as a juror by reason of interest, as provided in Section 11437, General Code, subd. 2, if upon inquiry the court determines that, notwithstanding such fact, the juror, if accepted, will render a fair and impartial verdict.
    2. In such action, where the issues tendered are the allegad negligence of the defendants and the claimed contributory negligence of the plaintiff,. and there is evidence introduced upon each side tending to maintain such issues, it is prejudicial error for the court upon request of the defendants to instruct the jury before argument that “this is an action brought by the plaintiff for damages on account of the alleged negligence of the defendants, and the burden of proving that she could not by the exercise of ordinary care have avoided the consequence of such negligence is on the plaintiff,” the burden of proving contributory negligence being upon the defendants, unless the plaintiff’s own evidence raised a presumption of negligence upon her part, in which event it became the duty of the plaintiff to remove that presumption before she could recover. (Baltimore & Ohio Rd. Co. v. Whitaere, 35 Ohio St., 627, approved and followed.)
    [1] Juries, 35 C. J. § 329; T2] Negligence, 29 Cyc. pp. 601, 605, 644.
    (No. 19166
    Decided February 16, 1926.)
    Error to the Court of Appeals of Hardin county.
    
      This is a proceeding in error to reverse the Court of Appeals of Hardin county. In the original action Lucy Columber sued the city of Kenton and William H. Maddex, a contractor, for damages for personal injuries by reason of an accident occurring on a sidewalk in that city. In her petition plaintiff claimed:
    That her injuries “were directly and solely caused by the negligence of defendants and each of them, in knowingly permitting said obstruction [a plank across the sidewalk] to be and remain on and across said sidewalk, without light, guard, signal, or a warning to apprise pedestrians of its existence and location.”
    Answers were duly filed by the defendants denying such claimed negligence and averring the contributory negligence of plaintiff. The cause came on for trial, which resulted in a verdict in favor of William H. Maddex and the city of Kenton.
    During the impaneling of the jury it appeared that a certain proposed juror was a taxpayer in the city of Kenton; whereupon he was challenged by the plaintiff for cause, which challenge was overruled, to which the plaintiff excepted, and the further inquiry was put:
    “You understand, do you, that if you return a verdict against the city that it will be paid by taxation? Would that fact, the fact that you might have to go down in your pocket a little deeper, would that have a tendency to make you reluctant to give the lady a judgment she was entitled to? A. I would give her a square deal.
    “Q. Regardless of the fact that it might affect your own pocketbook? A. Yes.”
    
      And further the record discloses:
    “Q. I understand that there are several taxpayers in the panel. I will ask you whether the fact that you are taxpayers in the city of Kenton, would that have a tendency on your part in favor of the city as against Mr. Maddex? Do any of you feel that as taxpayers you would favor the city in any way rather than Mr. Maddex, or would you be willing to try the case and treat them equally, notwithstanding the fact that you are a taxpayer? A. Yes.”
    Peremptory challenges of the plaintiff being exhausted, challenge for cause duly made was overruled and exceptions noted.
    The record further shows that before argument upon the request of the defendants the court gave in writing the following instruction to the jury:
    “This is an action brought by the plaintiff for damages on account of the alleged negligence of the defendants, and the burden of proving that she could not by the exercise of ordinary care have avoided the consequence of such negligence is on the plaintiff.”
    To the giving of this request the plaintiff excepted.
    A further ground of error is urged in the use of the word “convince” in the following instruction in the general charge:
    “By burden of proof is meant the duty resting on the party having the affirmative of the issue to convince the minds of the jury by the preponderance of the evidence of the truth of his contention. By preponderance of evidence is meant the evidence which possesses greater weight or convincing power.”
    The trial resulted in a verdict in favor of defendants. On error prosecuted to the Court of Appeals, that court reversed the judgment of the court below for permitting the alleged interested jurors to serve, for error in giving the above-noted request before argument, and for the instruction complained of in the general charge.
    Error is now prosecuted to this court to reverse that judgment.
    
      Mr. Loucks B. Brown, city solicitor, and Mr. J., R. Stillings, for plaintiff in error city of Kenton.
    
      Messrs. Stickle & Cessna, for plaintiff in error Maddex.
    
      Messrs. Henderson é Roof, for defendant in error.
   Day, J.

Before considering alleged grounds of error, it must first be determined whether the state of this record was such that the bill of exceptions disclosed the errors upon which the Court of Appeals based its judgment of reversal.

Plaintiffs in error contend that a reviewing court in a case where none of the evidence is made a part of the bill of exceptions, and no findings of fact are made, may not find prejudicial error in the charge of the court, and therefore enter a judgment of reversal,

It is to be remembered that the errors complained of appear in the impaneling of the jury, in charge before argument, and in charge after argument, and the bill of exceptions sets out such matter in detail.

While the evidence taken in the case is not set out at length, the record discloses as follows:

“And be it further remembered that thereupon the plaintiff introduced evidence tending to maintain the issues upon her part to be maintained, and each of the defendants introduced evidence tending to maintain the issues upon their respective parts to be maintained.”

It thus affirmatively appears that each party to the case introduced some evidence upon each branch of the case, tending to support the claims of the respective parties.

Now, the errors complained of involve, as above indicated, the impaneling of the jury and the charge of the court both before and after argument.

These three points involve questions of law only, to wit, whether the court transcended its power in the impaneling of the jury; and whether the court correctly gave instructions as to propositions of law involved upon the issues tendered.

We think no detailed statement of the evidence was necessary so long as the bill of exceptions showed that evidence was introduced by both parties to maintain the issues claimed, and are of opinion, therefore, that the Court of Appeals had a sufficient record before it, upon which it was entitled to render a judgment of reversal or affirmance, as the law of the case required; the weight of the evidence not being involved.

This brings us, therefore, to the first alleged ground of error, to wit, the question of ftie interest of the proposed juror, who was a taxpayer, whether or not his retention by the court over the challenge of the plaintiff below was in violation of Section 11437, General Code, subd. 2, controlling the selection of jurors in civil cases.

So much of that section as is pertinent reads:

“The following shall be good causes for challenge to any person called as a juror for the trial of any cause: * * *
“(2) That he has an interest in the cause.”

It is to be noted that this record discloses that the jurors expressed themselves as being able to render a fair and impartial verdict, regardless of the fact that some of them were taxpayers of the city of Kenton.

Section 11438, General Code, provides:

“Any petit juror may be challenged also on suspicion of prejudice against, or partiality for either party, . * * or other cause that may render him at the time an unsuitable juror. The validity of such challenge shall be determined by the court, and be sustained if the court has any doubt as to the juror’s being entirely unbiased.”

Much is necessarily confided to the trial judge in the conduct of a trial, and in the interpretation of a statute showing the qualification of a juror, in determining whether or not he has an interest in the cause, such as would disqualify him. The abuse of this discretion by the trial judge must clearly appear. Both in civil and criminal cases jurors have been permitted to sit who had formed an opinion touching the case from reading newspapers, yet who believed that they could render an impartial verdict on the law and the evidence. Cooper v. State, 16 Ohio St., 328. As to what constitutes interest of a judge or juror, see Comm’rs. of Clermont County v. Lytle, 3 Ohio St., 289, 290; Probasco v. Raine, Auditor, 50 Ohio St., 378, 392, 34 N. E., 536.

In other jurisdictions the question has not been harmoniously decided, and while the statutes of the various states are not verbatim with that of Ohio, yet the provisions as to the interest of the juror, bearing upon the question of his bias and prejudice by reason of being a taxpayer, are substantially the same.

The consensus of opinion seems to be that, if a juror on inquiry should say that he has an interest by reason of which he would not be able to render a fair and impartial verdict, he is thereby disqualified; but, if his interest by reason of being a taxpayer is not such as would affect his verdict, and if, regardless of the fact of being a taxpayer, he could listen to the evidence and render a fair and impartial verdict, under the instructions of the court as to the law, then such proposed juror is not disqualified.

As sustaining that view the following decisions of various states may be enumerated: City of Marshall v. McAllister, 18 Tex. Civ. App., 159, 43 S. W., 1043, Syl., 4; Omaha v. Cane, 15 Neb., 657, 20 N. W., 101; Rathbun v. Thurston County, 8 Wash., 238, 35 P., 1102, 1103; Eastman v. Board of Comm’rs. of Burke Co., 119 N. C., 505, 26 S. E., 39, Syl.; Mayor of City of Jackson v. Pool, 91 Tenn., 448, Syl. 1, 19 S. W., 324; City of Detroit v. Detroit Ry. Co., 134 Mich., 11, 95 N. W., 992, 99 N. W., 411, 104 Am. St. Rep., 600; Commonwealth v. Brown, 147 Mass., 585, 18 N. E., 587, 1 L. R. A., 620, 9 Am. St. Rep., 736.

The following states are contra: Broadway Mfg. Co. v. Leavenworth Terminal Ry. & Bridge Co., 81 Kan., 616, 106 P., 1034, 28 L. R. A., (N. S.), 156; Elliott v. Wallowa County, 57 Or., 236, 109 P., 130, Arm Cas., 1913A, 117; Cason v. Ottumwa, 102 Iowa, 99, 71 N. W., 192; Kansas City v. Kirkham, 9 Kan. App., 236, 59 P., 675; Robinson v. Mayor of Wilmington, 8 Houst. (Del.), 409, 32 A., 347; McGinty v. Keokuk, 66 Iowa, 725, 24 N. W., 506; City of Goshen v. England, 119 Ind., 368, 21 N. E., 977, 5 L. R. A., 253.

In the light of the provisions of the General Code of this state, and the construction heretofore given the statutes with reference to the qualification of jurors, both in civil and criminal cases, we have reached the conclusion that if a proposed juror otherwise qualified expresses himself as being able to render a fair and impartial verdict on the evidence and under instructions of the court as to the law, regardless of the fact that he is a taxpayer in a municipality which may be a party to an action, and the trial court is satisfied that the proposed juror is entirely unbiased and has no prejudice against or partiality for either party by reason of being a taxpayer, and overrules an objection to said juror upon such ground, and permits him to serve as a juror in the case, such action of the trial judge should not be reversed for error in so doing.

We come now to the second alleged error, to wit, the request before argument made by the defendants below, which request the court gáve to the jury over the objection and exception of plaintiff; such request being as follows:

“This is an action brought by the plaintiff for damages on account of the alleged negligence of the defendants, and the burden of proving that she could not by the exercise of ordinary care have avoided the consequences of such negligence is on the plaintiff.”

Was the giving of such request error?

The presumption of the law is that neither party was negligent, and the negligence in the' case of either was a question of proof. Contributory negligence is an affirmative defense, and the burden of showing the same is upon the party alleging the defense; but, if plaintiff’s own testimony in support of his cause of action raises a presumption of his own contributory negligence, the burden rests upon him to remove that presumption before he can recover. Baltimore & Ohio Rd. Co. v. Whitacre, 35 Ohio St., 627.

The effect of the request, as given, was to place the burden of disproving contributory negligence upon the plaintiff. The request omits the doctrine of requiring proof by plaintiff of her freedom from contributory negligence only in the event that her testimony raises the presumption of negligence on her part. Until the state of the evidence was such, there was no burden upon the plaintiff to prove that she was not negligent in the premises.

This court, in Columbus Railway Co. v. Ritter, 67 Ohio St., 53, at page 59, 65 N. E., 613, 614, in the opinion, says:

“The court erroneously placed upon the plaintiff below the burden of disproving contributory negligence charged in the answer, as a part of her case in chief. Such has never been the law in this state.”

The holding of the Court of Appeals that the giving of this request was erroneous was correct.

Finding that the conclusion of the Court of Appeals upon the remaining ground of claimed error was not erroneous, its judgment of reversal is affirmed.

Judgment affirmed.

Marshall, C. J., Matthias, Allen and Kinkade, JJ., concur.

Jones, J., concurs in the syllabus and in the judgment.

Robinson, J., concurs in proposition 2 of the syllabus and in the judgment.  