
    No. 231
    PICK v. LIMA (City)
    Ohio Appeals, 3rd Dist., Allen Co.
    No. 469.
    Decided Jan. 21, 1927
    301. CONTRIBUTORY NEGLIGENCE — Case reversed where on the issue of contributory negligence the court omits to charge that if conduct of plaintiff therein described were a proximate cause contributing directly to her injury, that she could not recover; and also where court failed to charge that burden was upon plaintiff to dispel, by other evidence, a presumption of negligence on her own part, brought out by her own evidence.
    First Publication of this Opinion
    Attorneys — C. J. Brotherton and Cable & Cable for Pick; Paul T. Landis for City; all of Lima.
   HUGHES, J.

Nettie Pick’s action was one for damages, brought in the Allen Common Pleas against the City of Lima, the result of a fall received by her on a sidewalk out of repair and based upon the negligence of the city. The verdict of the jury and the judgment thereon, were in favor of the city.

Error was prosecuted by Pick and the Court of Appeals, in reversing the case, held:

1.The record discloses that on the charge as to the negligence of Pick, the court omitted to say to the jury that such conduct as is therein described would constitute negligence on plaintiff’s part; and if it were a proximate cause contributing directly to-, the injury then she could not recover.

2.. .The statement given merely says that if plaintiff was guilty of the conduct therein described, she could not recover.

3. In the submission of the question of the plaintiff’s negligence, the court should have instructed the jury that if plaintiff’s own negligence raises a presumption of negligence on her part contributing as a proximate cause to her injury, then the burden is upon her to remove that presumption by other evidence.

4.' The verdict is against the weight of the evidence upon the issue of plaintiff’s negligence.

Judgment therefore reversed and • cause remanded.  