
    No. 647
    MATT v. POPOWSKI
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7705.
    Decided June 27, 1927.
    480. EVIDENCE — Where hypothetical question and answer thereto are allowed in evidence with respect to operation of plaintiff prior to accident, it is not prejudicial error for court not to exclude such question and answer where there is credible evidence in record to support judgment rendered in favor of plaintiff.
    Error to Common Pleas.
    Judgment affirmed.
    First Publication of this Opinion
    Attorneys — Dustin, ICcKeehan, Merrick, Arter & Stewart for Mavfc; Klein, Harris & Diehm for Popowski; ;11 of Cleveland.
   SULLIVAN, PJ.

In the Cuyahoga Common Pleas Mary Po-powski recovered a judgment against Hyman Matt for damages for personal injuries received in a collision between a car of the Cleveland Railway Co., and a truck of Matt. When the collision occured, Popowski was a passenger in the street car, and had just left her seat for the purpose of leaving said street car.

Matt prosecuted error claiming that the verdict and judgment against him were manifestly against the weight of the evidence. It was also argued that the court committed error in not excluding from the evidence a question and answer involving an hypothetical question, for the reason that it contained an element not in the case when the question was asked and answered.

In order to reverse on the weight of the evidence, there must project from the record some Net or circumstance that bears testimony to a miscarriage of justice, and there is not such a situation ir. this record. Such a reversal can be made only as a matter of law, and not because of anj opinion on part of the reviewing court.

It is claimed that there was an assumption that Popowski, prior to the accident, had always been well vnd in good health, but the evidence disclosed that she had had certain operations.

The real quesfon to determine, with respect to the competency of the hypothetical question, is whether the Derations were of such a nature that they vere an impairment to plaintiff’s health, beeaise of the fact that all operations are not i dications of bad health.

Credible evidene in the instant case discloses that even tbugh there were operations, they did not mateially affect her health, so that in this aspeetof the case there is some question as to whe'ier or not the court committed error in no excluding the testimony.

Assuming that th. court committed error, it was not prejudicial (i account of the opposing view point arising from the character and effect of the operatins. The expert was not cross-examined as towhether his opinion concerning plaintiff’s coifition would he changed by the history of the .perations.

Judgment affirmed.

(Vickery and Levine, JJ., concur).  