
    No. 307
    CLEVELAND RY. CO. v. HAYCOX
    Ohio Court of Appeals, Cuyahoga County
    No. 4359.
    Feb. 23, 1923
    INSTRUCTION TO JURY— (1) Error in court’s charge. EVIDENCE — (1) Admissability of testi-mon to lay witnesses as to plaintiff’s physiacl condition. JURORS — (1) Misconduct of juror in failing to disclose certain facts.
    (Cushing, Buchwalter and Hamilton, JJ., First District, sitting)
    Attorneys — Squire, Sanders & Dempsey, for plaintiff; Payer, Winch, Minshall & Karch, for Haycox.
   PER CURIAM.

Epitomized Opinion

Jeanette Haycox brought an action to recover for personal injuries, which she sustained while boarding one of the Railway Company’s street cars. The street car was -standing near a regular stop at the time plaintiff attempted to get on. The door - was open and the conductor had gone to throw a switch which was located near this point. Believing that the car was waiting for the passengers to enter, plaintiff stepped upon the car step, and was thrown against the car when it suddenly moved backward. The evidence was in conflict whether the car was standing at a regular stopping place. The petition did not allege that plaintiff was a passenger. The judge charged the jury in the alternative, saying that if plaintiff attempted to board the car not at a regular stopping place, then the company owed her ordinary care, but if the jury found that it was a regular stopping place, then the company owed her the highest degree of care. Moreover, during the trial various lay witnesses testified as to plaintiff’s physical condition. As plaintiff secured a verdict for $2,000, the Railway Company prosecuted error, claiming that the instruction was faulty, that it was error to admit the testimony of these lay witnesses, and that there was misconduct on the part of one of the jurors in tha one of he jurors had a claim against the Railway Company but failed to disclose it. In affirming the judgment of the lower court, it was held:

1. That as the petition did not charge that plaintiff was a passenger, the-charge was-well adapted, to the issues made by the pleadings.

2. A non-porfessional witness . may testify and give an opinion of a person’s physical condition, provided such opinion is founded on his own observations and is limited to the period of observation.

3. As ten members of the jury signed the verdict, and affidavits were filedd by the two other jurors, stating that they were not influenced by anything that one juror might have done, no prejudicial error was committed; even though one juror was guilty of misconduct.  