
    The Village of Monroeville v. Root.
    
      Right of parties as to instructions to jury — Section 6190 Rev. Siat.— Act of March 8,189% (89 Ohio Laws, 60) — What constitutes er~ rors.
    
    1. Section 5190, Revised Statutes, as amended March 3, 1892 (89 Ohio Laws 60),confers upon parties the right to have such correct written instructions as may be requested given to the jury before the argument.
    2. To constitute error under this provision of the statute, the record must affirmatively show that the court was requested to give such instructions before the argument, and that.its refusal to do so was the subject of an exception.
    (Decided May 26, 1896.)
    Error to the Circuit Court of Huron county.
    
      O. P. <& L. W. Wichham, for plaintiff in error.
    In this case the error assigned, and for which the circuit court reversed the judgment of the court of common common pleas, is the refusal of the trial court to give to the jury, before argument, certain charges.
    It is contended by counsel for defendant in error, that under section 5190, Revised Statutes, subdivision 5, it is the duty of, and mandatory upon the court, to give instructions to the jury before argument, if requested so to do by either party. When the jury is sworn, the trial shall proceed, except as provided in the next section, in the following order, unless the court for special reasons otherwise direct. When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to he given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.
    
      Umbenhauer v. The State, 4 Cir. Ct. Rep., 378; Dural v. Fuhrmau, 3 C. C. R., 305; 23 Bull., 176; 19 Bull., 424; 1 Bull., 290.
    We contend that under section 5190 it is within the discretion of the court to change the order of the proceedings of the trial if there be “especial reasons ” for the same. Dille v. Lovell, 37 Ohio St., 415.
    It is well settled, that, before this court will reverse a judgment, the error complained of must be material, and appear to be to the prejudice of the party seeking to take advantage of it; and must moreover be affirmatively shown by the record. Courtright v. Staggers, 15 O. S., 514; 25 O. S., 635; 12 O. S., 10; 6 O. S., 182: 23 O. S., 367; 20 O. S. 361; 4 O.S., 251; 5 O. S., 88-375.
    It does not appear that the defendant in error was prejudiced by the refusal of the court to give the charges before argument. The plaintiff below could not have been prejudiced by the fact that the court gave the law requested in the charges, in his own language, instead of giving the charges as written. Bond v. State, 23 O. S., 349; 14 O. S., 592; Enc. of Law, vol. 2, p. 239.
    
      
      Q. T. <& O. JET. Steiocvrt, A. E. Rowley <& Andrews Bros., for defendant in error.
    The plaintiff in error attempts in its brief, to set off the discretion of the court of common pleas against its manifest errors, in refusing to give to the jury, at the close of the evidence, each and all of the ten written instructions on matters of law, duly presented to that court by the plaintiff below, at the trial of the case before it, rejecting eight of them. There is no pretense that there was anything wrong in these eight requests so refused; but on the contrary, it is said that thesubstanceof them was given by the court as good law, in its own way and words, at the time of its final charge to the jury; and that it had the power, at its discretion, to thus change the statutory order of trial. The law then in force was that of March 3, 1892. Revised Stat. 5190.
    It is here pretended, that the court had the right, at its own discretion, in effect to strike from the statute the words “ before the argument to the jury is eommeneed,” and to substitute the words after the argument to the jury is closed. It being conceded that the requests werefor proper instructions, this right of the plaintiff was four-fold.
    1. To present them to the court in writing.
    2; To have them given to the jury in the form so presented:
    3. To have this done before the argument to the jury was commenced;
    4. To have them all taken by the jurors, in their retirement, and returned with their verdict into the court, and to remain on file with the papers of the case; as required in the seventh clause of the section.
    These together composed a very important right, of which, it was a great wrong to deprive the plaintiff below. Lutterbeck v. Street Railway Co., 1 Ohio, 141; Jones on Negligence of Munici. Corp., Secs. 89, 221; Township of Kingston v. Gibbons, S. C. Pa. 44, Leg int., 169; Celestia Center v. City of Toledo 34 W. L. B., 213; McKeigue, Adm., v. City of Janesville, 68 Wis., 50; Delger v. City of St. Paul, 14 Fed. Rep., 567; Bullock v. Mayor, etc., of New York, 99 N.Y., 654.
   Shauck, J.

Root sought to recover in the common pleas court for injuries alleged to have been sustained by him in consequence of the rough and unsafe condition of a walk of the village. The answer denied the negligence of the village and alleged that if the plaintiff sustained injury it was due to his own negligence, and this allegation was denied by the reply.

On the trial there was .evidence tending to show the negligence of the village in maintaining the walk, and that the plaintiff had actual knowledge of its condition.

At the close of the testimony, and before the argument, counsel for the plaintiff, in writing, requested the court to give .ten propositions in charge to the jury. This the court refused to do and the plaintiff excepted. After the argument in its general charge, the court gave such of the propositions so requested as were correct statements of the law applicable to the case. In so far as it modified the instruction requested, its action was justified by Shaeffler v. Sandusky, 33 Ohio St., 247.

The jury returned a verdict for the village and a motion for a new trial being overruled judgment was entered on the verdict.

In the circuit court this judgment was reversed, not, as we under stand the record, because the trial court was thought to have erred in defining the legal duty of either party, but because it did not give before the argument the sound propositions requested.

We think the circuit court took the correct view of the fifth subdivision of section 5190, as amended March 3, 1892, 89 Ohio Laws, 60: “When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.” Counsel for the plaintiff in error contends that it is still a matter of discretion with the trial judge to give the propositions requested either before or after argument. This view denies all effect to the amendment. Before the amendment the statute authorized the requests for instructions to be made before the argument, but, as it was interrupted, it required of the court nothing- more than the giving of such requested instructions as were proper before the final submission of the cause. Since the legislature has taken care to confer upon a party the right to have the instruction given before the argument, the courts cannot say that there is no substantial error in a denial of the right.

But, notwithstanding this provision of the statute, it must frequently, if not usually, be a matter of indifference to counsel whether the requested instructions precede or follow the argument. And it will still be proper for counsel to present their requests to the court before arg-ument, even if they are willing that they should be givefn after it. The record submitted to the circuit court did not show that this was not a case of that character. It does show that the propositions were submitted to the trial judge before the argument, and that there was a request that they be given to the jury. But it does not appear that it was desired that they be given before the arg’ument. Nor does the exception show that it was taken to a refusal to give the instruction before the argument. It cannot be inferred from this record that the attention of the trial judge was in any way called to the right conferred by the amended statute. There was, therefore, no case for a reversal upon the ground stated by the circuit court.

Judgment of the circuit court reversed and that of the common pleas affirmed.  