
    Gschwind, Admx., v. Viers.
    
      Evidence — Objection upon ground of immateriality, waives other grounds — Weather conditions on disputed days material in establishing date of injury — Plaintiff injured while attempting to escape falling limb of tree — Surrounding circumstances, including wind conditions, competent — Charge to jury — Exercise of care towards pedestrians by tree owner — Res ipsa loquitur inapplicable— Contributory negligence not pleaded, but raised by evidence — Proof that injuries received by falling over hedge.
    
    1. Where evidence is objected to only on ground of immateriality, all other grounds are waived.
    2. Where there was a dispute in evidence as to date of injury received by plaintiff while attempting to escape falling limb of tree, weather conditions on each of disputed days was material in order to enable jury to determine correct date.
    3. It is competent to show surrounding circumstances, including Whether wind was blowing or not, where injury is alleged to have occurred by reason of falling limb of tree.
    4. In action for injuries resulting from an attempt to escape falling limb of tree, charge that owner of property in which tree was situated had the duty to exercise ordinary care for safety of pedestrians using sidewalk is as favorable as plaintiff could expect to be given.
    5. Action for injuries from effort to escape falling limb of tree does not require application of doctrine of res ipsa loquitur.
    
    6. Where issue of contributory negligence is not made by pleadings, but is raised by evidence, charge on contributory negligence is proper.
    7. Where evidence in action for injuries alleged to have resulted in attempt to escape falling limb of tree tended to show plaintiff fell over a hedge and sustained injuries, question of contributory negligence was properly submitted to jury.
    (Decided March 30, 1925.)
    Error: Court of Appeals for Lucas county.
    
      Messrs. Mantón & Mantón, for plaintiff in error.
    
      Mr. Charles R. Barefoot, for defendant in error.
   Williams, J.

Lucia Ballantyne, as plaintiff, filed her petition in the court of common pleas seeking to recover damages for personal injuries which she claimed to have sustained while making an effort to get out of the way of a falling limh.

At the time of the transaction the defendant below, Mary C. Yiers, was the owner of a lot on Irving street in the city of Toledo. On the space between the sidewalk and the curb in the street, directly in front of that lot, stood a tree. The plaintiff was on the sidewalk on the opposite side of the street talking to some women when the limb fell from the tree referred to, and the plaintiff, either through being startled at the noise, or in trying to escape from the point where she thought the falling limb would strike the ground, tripped over or fell into a hedge near the sidewalk and broke her arm, and perhaps sustained other bodily injuries.

Upon trial of the case in the court below the jury returned a verdict for the defendant, and the plaintiff having died in the meantime her administratrix prosecutes this proceeding in error to reverse the judgment rendered on that verdict. Counsel for plaintiff in error claim that the trial court erred, first, in the admission of evidence, and second, in the charge to the jury.

As to the admission of evidence counsel relies upon one ground, and that is that the trial court erred in admitting in evidence an authenticated copy of the record of the local weather bureau office as to the weather, and especially the velocity of the wind on the afternoon of May 5, 1923. An examination of the bill of exceptions discloses that this evidence was objected to solely on the ground that the evidence was immaterial, and the objection was overruled and an exception taken by the plaintiff below. As the evidence was objected to only on the ground of immateriality, all other grounds were waived.

The evidence of the plaintiff tended to show that the transaction took place on May 12, 1923, and, on the other hand, the evidence of the defendant, as shown, by exhibit No. 4, which was a hospital record relating to the case of the plaintiff below, Lucia Ballantyne, tended to show that the transaction occurred on May 5, 1923. There is evidence in the record tending to show that the transaction occurred during the afternoon, the witnesses differing somewhat as to whether it was about 1 o’clock or later. As there was a dispute in the evidence as to whether the transaction occurred on the 5th or the 12th of May, we think it was material to show the weather condition on the afternoon of each of those dates, and it was for the jury to determine from the evidence on which date the transaction took place. Where it is claimed that an injury occurs by reason of a falling limb, it is always competent to show all the surrounding circumstances, including the fact as to whether the wind was blowing or not. We think there was. no error in the admission of the evidence.

As to the charge of the court, the plaintiff in error claims that the court erred, first, in not charging the rule of res ipsa loquitur, and, second, in charging the law as to contributory negligence. We find the law as to res ipsa loquitur discussed by the Supreme Court of Ohio in the following cases: Cincinnati Traction Co. v. Holzenkamp, 74 Ohio St., 379, 78 N. E., 529, 6 L. R. A., (N. S.), 800, 113 Am. St. Rep., 980; and Loomis v. Toledo Railways & Light Co., 107 Ohio St., 161, 140 N. E., 639.

While the rule has often been applied to falling objects, such as the falling of buildings, trolley poles, objects on the top of buildings, scaffolding, and cash carriers in stores, in all of these instances the falling of such object grew out of the construetion of some building, or work, or the carrying on of some business. We do not find that the rule has ever been applied to the falling of a limb from a tree. There would seem to be a distinction in applying the doctrine of res ipsa loquitur between the falling of that which grows naturally and that which is the work of man.

The trial court charged in substance that there Was a duty on the part of the property owners to exercise ordinary care with reference to the tree in question, which stood in front of the defendant’s lot on the space between the sidewalk and curb, for the safety of pedestrians using the sidewalk. Plaintiff below could not complain of this instruction, for it was as favorable to plaintiff as plaintiff had a right to ask, and we are not called upon to determine its correctness. Assuming the charge to be correct in this respect, we hold that the circumstances of this case did not require the application of the doctrine of res ipsa loquitur.

We say with reference to the question of the falling limb being caused by vis major that the court in its charge did not say anything regarding a storm or the blowing of the wind, which, when construed with the rest of the charge, was prejudicial to the rights of the plaintiff below.

As to the claim that the court erred in its charge on contributory negligence, we find that the issue of contributory negligence was not made by the pleadings, but was raised by the evidence. Under such circumstances it has been held that it is not error to charge the law as to contributory negligence. Rayland Coal Co. v. McFadden, Adm’r., 90 Ohio St., 183, 107 N. E., 330.

The evidence tended to show that the plaintiff fell over a hedge and sustained her injuries. It was proper to submit the question to the jury whether or not her fall and resulting injuries were due to contributory negligence on her part.

There is no prejudicial error in 'the record, and we are of the opinion that substantial justice has been done as between the parties.

Judgment affirmed.

Richards and Young, JJ., concur.  