
    No. 427
    GECHWIND, ADM. v. VIERS
    Ohio Appeals, 6th Dist. Lucas Co.
    No. 1547.
    Decided March 30, 1925
    225. CHARGE TO JURY—-Where question of contributory negligence is raised by evidence, though not in pleadings, the court may charge thereon.
    1028. RES IPSA LOQUITUR—Rule of does not exist in the case of a falling limb from tree.
    Attorneys—Mantón & Mantón, for Gechwind, Charles R. Bearfoot, for Viers, all of Toledo.
   WILLIAMS, J.

Lucia Ballantyne brought action in the Lucas Common Pleas against Mary Viers, claiming that in trying to escape from a falling limb, of a tree which stood in front of Vier’s home, she fell over a hedge, thereby sustaining injuries for which damages were sought. The judgment in the lower court was rendered in favor of Viers. Ballantyne having died in the meantime, error was prosecuted by Minerva Gech-wind, administratrix.

It was contended that the trial court erred in the admission of evidence and in its charge to the jury. It was contended that, weather bureau reports were admited into the evidence to show, the velocity of the wind and the condition of the weather. It was objected to solely upon the ground that it was immaterial. It was also contended that the court in its charge to the jury did not charge on res ipsa loquitur. The Court of Appeals held:

1. Since there was a dispute as to the date on which the accident occurred, and there was evidence tending to show that the accident occurred on different dates, the weather bureau report showing the weather condition on the afternoon of each of the days were material and therefore admissible.

2. The doctrine of res ipsa loquitur, though applied to falling objects such as falling buildings, trolley poles, scaffoldong etc., has never been applied to falling limbs of trees. There would seem to be a distinction in applying the doctrine to the falling of that which grows naturally, and that which is the work of man. Loomis v. Tol. Rys. & Light Co., 107 OS. 161; Cini. Traction Co. v. Holzenkamp, 74 OS. 379.

3. Since the question of contributory negligence was not plead, but raised by the evidence, the court did not err in charging the jury thereon. Judgment affirmed.  