
    The Cincinnati Traction Co. v. Eyrich.
    
      Negligence — One defendant may prosecute error proceedings without joining other defendant, when — Charge to jury— Preponderance of evidence and burden of proof erroneously defined — Defendant deprived of benefit of evidence produced by plaintiff’s witnesses.
    
    1. In action for damages from automobile collision resulting from negligence of two defendants, one defendant may prosecute error without joining other defendant as party, liability between defendants being joint and several and there being no right of contribution between them.
    2. In action for damages growing out of automobile collision, charge that burden of proof is sustained if in weighing all evidence “offered” on behalf of party having burden of proof such evidence outweighs that “offered” by other party confined jury in weighing evidence in favor of defendant to consideration of evidence offered by defendant, and was prejudicial error as depriving defendant of benefit of evidence in its favor brought out by witness for plaintiff.
    (Decided March 28, 1927.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. James G. Steivart, for plaintiff in error.
    
      Messrs. Schorr S Wesselmarm, Mr. Arthur G. Fricke, and Mr. Thomas L. Michie, for defendant in error.
   Buchwalter, J.

The action was brought in the municipal court of Cincinnati by Albert Eyrich to recover damages for personal injuries against the Cincinnati Traction Company and Eva Lindemann. A verdict was returned for the plaintiff against both defendants, and judgment entered thereon. Error was prosecuted to the court of common pleas by the Cincinnati Traction Company, where the judgment of the municipal court was affirmed. The Cincinnati Traction Company now prosecutes error proceedings in this court to reverse those judgments.

The parties here are the Cincinnati Traction Company, as plaintiff in error, and Albert Eyrich, as defendant in error, Eva Lindemann not having been made a party to these proceedings.

Defendant in error filed a motion to dismiss, for the reason that Eva Lindemann is not a party defendant.

In an action growing out of the same accident, wherein George P. Eyrich, Sr., was the plaintiff in the municipal court and the traction company and Eva Lindemann were defendants, the plaintiff obtained a judgment against Eva Lindemann only. Eva Lindemann then brought e'rror proceedings, without making the Cincinnati Traction Company a party thereto. A motion to dismiss, for the same reason, was presented, and in that case the motion to dismiss was overruled. The reasons stated and the authorities cited in that opinion, which is reported in 21 Ohio App., 314, 153 N. E., 221, are applicable to this case. See, also, Pennsylvania Co. v. West Penn. Rys. Co., 110 Ohio St., 516, 144 N. E., 51, syllabus; Goebel, Jr., v. Hummel, Jr., 21 Ohio App., 486, 153 N. E., 223.

Under these decisions, the liability being joint and several, and there being no right of contribution as between joint tort-feasors, such a judgment against them is a joint and several liability. Plaintiff in error is, therefore, not required to join Eva M. Lindemann as a party defendant, and the motion to dismiss is overruled.

Coming now to the two assignments of error which were argued in this court: First, that the verdict and judgment are against the weight of the evidence; second, error in the charge of the court in defining weight of evidence.

We have examined the record and do not consider that the verdict and judgment are manifestly against the weight of the evidence.

The portion of the charge complained of is as follows:

“By preponderance of the evidence is meant the greater weight of the evidence. It does not necessarily mean a greater number of witnesses, but simply means if in weighing all, the evidence offered on behalf of the party on whom, is placed the burden of proof on any material point in issue, such evidence outweighs that offered on the part of the other party, then the party on whom the burden was placed is said to have sustained the burden of proof. If the evidence offered on behalf of the party on whom is placed the burden of proof is evenly balanced in your minds with the evidence offered on behalf of the other party, on any material matter in issue, then the party on whom was placed the burden of proof has failed to sustain the burden on this issue.”

The vice in this charge is in the use of the word “offered.” By this charge, the jury, in weighing the evidence in favor of the traction company, is confined in its consideration to evidence offered by the said company. A similar charge defining preponderance of the evidence and instructing the jury as to the manner of weighing it, was passed upon by the Supreme Court of Ohio in the case of Cincinnati Traction Co. v. Williams, 115 Ohio St., 124, 152 N. E., 30, decided May 25, 1926. The charge therein under consideration was as follows :

“If, in weighing all of the evidence offered on behalf of the plaintiff on these issues, such evidence outweighs in your mind that offered on behalf of the defendant, then on those issues the plaintiff is said to have sustained the burden of proof. If the evidence offered on behalf of the plaintiff is evenly balanced in your minds by that offered on behalf of the defendant on any of these issues, then on that issue plaintiff has failed to sustain the burden of proof.”

The court, in referring to this charge, says on page 126 (152 N. E., 30):

“The error in each of these instructions is quite apparent. The prejudicial character thereof, particularly the one last above quoted, is manifest upon a consideration of the entire record, which discloses very substantial evidence that the injury resulted from the negligence of the driver of the truck rather than from that of the motorman of the traction car.”

As illustrative of the prejudicial effect of the charge herein under consideration, it appears from the record that the wife of the plaintiff, called in his behalf, gave testimony to the effect that the injury was not the result of the negligence of the traction company. However, the charge, as given, would deprive the Cincinnati Traction Company of the benefit of such evidence, brought out by a witness for the plaintiff. This was necessarily prejudicial.

The judgment will, therefore, be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Hamilton, P. J., and Cushing, J., concur.  