
    No. 127
    CLEVELAND RY. CO. v. FRIEDRICH
    No. 19406.
    Supreme Court
    On motion to certify.
    Dock. Nov. 18, 1925;
    3 Abs. 706.
    225. CHARGE TO JURY — 1. Where court’s charge establishes two theories in which either one or the other co-dewendant is liable, has error been committed when court instructs jury that it might bring in a joint verdict?
    2. Would such instruction be inconsistent with the general charge,
    Attorneys — Squire, Sanders & Dempsey for Company; Walter D. Meals for Friedrich; all of Cleveland.
   Clara Friedrich sued the Cleveland Railway Co. and Ralph Hulett in the Cuyahoga Common Pleas, alleging that while driving a buggy, Hulett’s machine wa sstruck by a car of the Company and was propelled against the buggy, by reason of which she was thrown to the street sustaining certain injuries.

Friedrich alleged that the Company was careless in failing to keep a lookout for the automobile, in not having the car under control and in failing to slacken the speed of the car in order to avoid the collision. The jury returned a verdict in favor of Friedrich for $6500 against the Company and Hulett jointly. The Court of Appeals affirmed the judgment of the Common Pleas.

In the Supreme Court, the Company contends :

1. That the court erred in charging the jury that it might bring in a joint verdict against both co-defendants.

2. That the court erred in refusing to instruct the jury as requested by it.

It is claimed that under the courts charge and from its language, there could be but two theories upon which a verdict could be returned. Either Hulett was negligent and a verdict was to be returned for the Company or Hulett was not negligent; that there was to be an exoneration of one or the other co-defendant. It is urged that the court’s instruction that the jury might bring in a joint verdict wa sinconsistent with the language from the charge.

It is claimed by the Company that its request to charge was obligatory under the state of the record. The request was: “There is no evidence of joint negligence in this case and your verdict must be either against one or against the other of these defendants. It cannot be against both.”  