
    No. 55
    CLEVELAND RAILWAY CO. v. EVANS
    Cuyahoga Court of Appeals,
    No. 4049,
    Nov. 27, 1922
    ERROR — (1) Not reversible — (2) Impertinent Question injected into case by charge of court, not detrimental — (3) Measure of damages, not what individuals may think is enough.
    Attorneys — Squires, Sanders & Dempsey, for Railway Co.; Payer, Winch, Minshall & Karch, for Evans.
   SULLIVAN, J.:

Epitomized Opinion

The above defendant, Florence Evans, recovered a judgment against the Railway Co. for injury she alleged she, as a passenger, sustained in alighting or attempting to alight from a street car of said company.

1. After disposing of the question of the weight lof evidence, by holding that although there were many sharp conflicts in the evidence and as to the questions of liability and measure of damages, they were not sufficient to justify a reviewing court to rverse the' judgment, citing several pertinent authorities.

2. In the charge of the Common Pleas judge to the jury he injected into the case an issue, concerning the removal, by Evans, of the .presumption of negligence, which did not arise in the record, and was not warranted by the • pleadings or evidence. The Court of Appeals held that as the instruction was beneficial to the company, instead of detrimental, because it placed a burden upon Evans, which the nature of the evidence did not warrant. In other words, she was compelled to carry an involuntary burden, which the law of the case did not justify or require. For that reason there was no prejudicial error, in that part of the charge, of which the railway company had the right to complain. ,

3. The judge charged the jury that “the measure of compensation is not what particular individuals might thing is enough, but it is what three-fourth of you, after considering all the consequences of the injury, think'vthe average, ordinary person would .think was sufficient money redress.” The Appellate Court was of the opinion that there was no prejudicial error in this charge, as a whole, especially as it appears from the record that when the court asked the counsel at the conclusion of the charge, whether there were any other requests to charge, counesl answered in the negative, citing Wire Spring Co. v. Forgath, in this court, No. 672.  