
    No. 326
    GELINDO v. NYE
    Ohio Court of Appeals, Summit County
    No. 592.
    Jan. 18, 1923
    ?his opinion has not been published except in Abstract.
    PREJUDICIAL ERROR — (1) Overruling demurred to defenses which could be proved under general denial — (2) Failure of court to go further and enlarge on charge — (3) Verdict against weight of evidence.
    1 Attorneys — Sieber, Sieber & Amer, for Gelindo; Sfmoyer, Clinedinst & Smoyer, for Nye.
   ?UNK, J.

Epitomized Opinion

Gelindo brought an action for personal injury :aused by the collision of a Cadillac touring car and i motorcycle with a side car attached, in which the ilaintiff was riding as a guest of the driver. The iction happened at a street intersection in Akron, fhe defendant’s answer contended three defenses, me consisting of a general denial, one that the incident resulted directly, proximately and solely torn the negligence of the driver of the motorcycle, md one caused by contributory negligence. The ilaintiff filed a general demurrer to the second and ;hird defenses, which was overruled. The trial resulted in a verdict for the defendant and the plaintiff prosecuted error, claiming that the court erred overruling the demurrer, that the court’s charge vas erroneous, and that the verdict was clearly against the weight of evidence. In affirming the lodgment the court of appeals'held:

i 1. Where several consistent defenses refer to the same cause of action, which they intend to answer, t is not error for the court to overrule a demurrer )r motion, because they might have been proved ibder the defense of a general denial.

/ 2. If the charge of the court is correct as far as i goes, and there are no special requirements to :harge, and the court’s attention is not called by :punsel for the complaining party to any omissions may have made, it is not prejudicial error for sire court not to have gone farther in its charge.

' 3. While there was considerable conflict in the evidence, there was sufficient evidence to warrant a jury fi finding for the defendant.  