
    No. 442
    CLEVELAND (City) v. DONALD C. SMITH
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4352.
    Decided April 23, 1923
    !HARGE TO JURY — Special charge after failu" to cover contributory negligence in general charge —General exception saves and cures the omission of special exception.
    Vickery. P. J., Sullivan and Levine, JJ.
    Error to Cuyahoga Common Pleas-;
    affirmed.
    Attorneys — Oscar Bell, for the City; Day, Day & Wilkin, for Smith.
   'ER CURIAM:-

Epitomized Opinion

Smith, the driver of a taxicab, brought suit against be city for damages - on account of an alleged- coin lision between his cab and a city garbage truck. He obtained a judgment for $750, to which error is herein prosecuted, on two points, viz., that it is contrary to the weight of testimony, and that the court erred in its charge as to contributory negligence.

1. On the first ground the Court of Appeals found against disturbing the judgment, there being evidence in the record to sustain the contention of Smith.

2. The record shows that defendant’s contributory negligence was brought into the case by the evidence, although not pleaded, and at the close of the charge, the judge not having properly covered the question, its attention was called to that fact by the attorney for the city. Thereupon the court charged the jpry upon the question. To the charge as given no special exception was taken, and the attorney appeared satisfied. However, a general exception was saved to the charge, and as under the rule the question could be raised now, was the charge given a proper one? If the charge was erroneous because no contributory negligence was mentioned in the general charge, it was cured by the court complying with request of counsel for the city that it be charged. The charge conforms substantially to the law, and the trial court did not err in this respect.  