
    No. 683
    CLEVELAND RAILWAY CO. v. McCARTNEY
    Ohio Appeals, 8th District, Cuyahoga County.
    No. 4536.
    Decided June 29, 1923
    166. ERROR.
    Error for court to charge on contributory negligence when not in issue.
   SAYRE, J.

Epitomized Opinion

This is an action brought by McCartney against the Cleveland Railway Company for personal injuries. The petition alleged that the defendant operated i+s car at a dangerous rate of speed and failed to give any signal of its approach. To this the defendant filed a general denial. The plaintiff introduced evidence tending to show that it was snowing at the fime of the accident and that she was a guest in an automobile, sitting in the rear seat of same when the eolllision occurred. Evidence was also offered tending to show that the street car was travelling at an excessive rate of speed and that no signal was given. Defendant offered evidence in flat contradiction. No issue of contributory negligence was made. The trial resulted in a verdict for the plaintiff, whereupon defendant prosecuted error, claiming that the chaige of the court was erroneous in that it violated the rule established by 73 OS. 1 and 75 OS. 171. In reversing the judgment of the trial court, the Court of Appeals held:

1. Where no issue of contributory negligence is made b~ the pleadings, and in which, on the trial, the defense is wholly that the defendant was not guilty of negligence, it is preiudicial error to charge the jury at length on the question of contributory negligence.  