
    Palm v. The Community Traction Co.
    (Decided February 25, 1929.)
    
      
      Mr. Joseph G. Gluck and Mr. M. M. Garfinkel, for plaintiff in error.
    
      Messrs. Tracy, Chapman & Welles, and Mr. Frank Harrington, for defendant in error.
   Richards, J.

Stella Palm was a passenger on one of the cars of the defendant company in the city of Toledo, and claims to have been injured by being thrown to the floor of the car by a sudden jerlc as she was about to alight. The trial resulted in a general verdict and judgment in favor of defendant.

The petition charges that the plaintiff was a passenger on one of the defendant’s cars on the Erie street line on or about January 3, 1928, at about 7:30 p. m., and was in the company of a lady friend. It appears from the evidence that she and her friend were proceeding to alight at the corner of Erie and Elm streets, and that the car had come to a complete stop. The plaintiff and her companion had walked to the front of the car, which was a so-called one-man car, and were about to pay the fares to the motorman when the car started with a sudden jerk, and both of the ladies were thrown backward,' the plaintiff falling full length on the floor of the car on her back and her companion falling into the lap of some passenger.

On the trial of the case, much testimony was offered relating to the precise time of the accident, no report having been made to the company, and it having no knowledge of the facts. The plaintiff testified positively and without qualification that the accident happened on January 3,1928, at about 7:30 p. m. Her companion testified that it happened in the’forepart of January, but she was not able to fix the exact date. The defendant contended that no accident happened on the Erie street line at that time. The plaintiff, when asked if she could recognize the motorman, answered “Absolutely,” and she proceeded to describe him, and went to the extent of stating that the badge number on his cap was “277.” She also described him as a foreigner. She thereupon, on request, picked out the one whom she claimed was the motorman from a group of employees of the company, his name being Rymariewicz, and it developed that the number on his cap was in fact “277.” Evidence offered on behalf of the defendant shows that Bymariewicz, while a regular motorman on the Erie street line, was not on duty on January 2 or 3, 1928, but was on duty and serving on that line on January 4, 5, 6, and 7, 1928. Testimony was offered tending to show that the number of the car on which plaintiff claims to have been injured was “624” while evidence offered on behalf of the defendant company is to the effect that car No. 624 was not on the Erie street line on January 3, 1928.

■ Plaintiff testified that she was treated by her physician on the day following the accident, and his testimony is to the effect that his first services were rendered on January 4, but he seems to have been giving that date from his memory and without having referred to his account. He continued to treat her for some little time after that, his bill amounting to the sum of $35. In this state of the evidence the trial judge was asked to charge the jury, in advance of argument, the following proposition:

“You are instructed that unless you find that the accident of which plaintiff complains occurred at about 7:30 p. m., Tuesday, January 3rd, at the intersection of Elm and Erie street, your verdict must be for the defendant. ”

This charge was given to the jury in advance of argument, and over the exception of counsel for plaintiff, and was again given to the jury in the course of the general charge. It made the right of the plaintiff to recover depend solely upon whether she was injured on the precise day that she stated in her testimony, even though other testimony was introduced which would indicate that the accident occurred at a time when Rymariewicz was the motorman, wearing badge No. 277, and when car No. 624 was in use on Erie street. ¥e think this charge was manifestly erroneous and prejudicial to the rights of the plaintiff.

Some confusion as to date may have arisen from the fact that the 1st day of January, 1928, was on a Sunday, and that the following Monday was observed as a holiday. If the plaintiff had in mind that the accident occurred two days after the day that was observed as New Year’s Day, that would make the date January 4 instead of January 3, and it appears from the record that the defendant company has a different schedule for Sundays and holidays. The effect of the instruction was to make the right of recovery depend wholly and absolutely on the plaintiff’s recollection of the date on which she claims to have been injured rather than on the merits of the case.

It is urged, however, that under the doctrine announced in McAllister v. Hartzell, 60 Ohio St., 69, 53 N. E., 715, and other kindred cases, the judgment could not be reversed for this error. This court recognizes, and has often applied, the rule to which reference has been made, but that rule can have no application where the charge is of such a character that it relates to all the issues, and the instruction given in this case covered the whole scope of all the issues. The Scioto Valley Ry. & Power Co. v. Rutter, Admx., 112 Ohio St., 500, 147 N. E., 910. The instruction was equivalent to saying to the jury: “No matter how seriously the plaintiff was injured, nor under what circumstances, she is not entitled to recover unless the injury occurred on January 3rd, 1928, at about 7:30 p. m.”

For the reasons given, the judgment will be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Williams and Lloyd, JJ., concur.  