
    No. 54
    VARIETY IRON & STEEL CO. v. NOVAK et
    No. 19532.
    Supreme Court
    On motion to certify.
    Dock. Jan. 5, 1926;
    4 Abs. 40.
    225. CHARGE TO JURY — In an action for personal injuries against two defendants for negligence, must the court separate and definitely state to the jury in the charge the issues of fact involved?
    Attorneys — Dustin, MeKeehan, Merrick, Arter and Stewart, for Iron & Steel Co.; Payer, Winch, Minshall & Karch, for Novak; Squire, Sanders & Dempsey, for Rwy. Co.; all of Cleveland.
   Esther Novak was a passenger in a street car belonging to the Cleveland Railway Company going west on Woodland Avenue in Cleveland. At East 40th Street, this car collided with a motor truck belonging to the Variety Iron & Steel Company, which was proceeding north on East 40th Street, thereby injuring Novak." On trial in the Cuyahoga Common Pleas there was great conflict in the testimony concerning the speed of the car and truck, the respective position of each and the location of the car when the truck crossed Woodland Avenue. Several acts of negligence against both companys were set up in the petition and the court charged the jury in part as follows:

“Were the defendants, both, or either of them, negligent? That is, by the negligence of the defendants, did the Railway Company’s car come in collision with the truck of the defendants, The Variety Iron & Steel Company or, did the truck by the negligence of the Street Railway come into collision with the street car without negligence on the part of the truck, or did the Street Railway, without negligence on its part, but by the negligence on the part of the truck, come into collision with the truck of the Iron & Steel Company, or did the collision between the Street Car and the truck of the Iron and Steel Company occur without the fault or negligence of either?”

The jury returned a verdict for Novak and judgment was rendered thereon which was affirmed by Court of Appeals.

The Iron & Steel Company in.the Supreme Court contends under Railway v. Lockwood, 72 OS. 586, that the court erred in failing and refusing to separate and to definitely state to the jury the issues of fact which were involved.  