
    Community Traction Co. v. Jakubec.
    (Decided January 19, 1931.)
    
      
      Messrs. Tracy, Chapman & Welles, for plaintiff in error.
    
      Mr. H. T. Towe, for defendant in error.
   Richards, J.

John Jakubec, a passenger on the evening of December 17, 1928, riding in a private automobile, was injured by a collision between the automobile and a bus operated by the Community Traction Company. He brought an action to recover damages therefor, which resulted in a verdict and judgment in his favor in the amount of $500. It is urged in this court that the judgment should be reversed because of refusal to give before argument two written instructions asked by the Community Traction Company, and because of error in the general charge and in the admission of evidence.

It appears from the bill of exceptions that after dark on the date named Jakubec was returning to his home from work at the Libbey-Owens Class Company, riding in an automobile with a friend employed at the same place and residing in the vicinity where Jakubec lives, and that Jakubec had a bargain with his friend to pay 10 cents each trip for being conveyed to and from his work. The testimony offered on behalf of Jakubec shows it was raining and snowing, that the rain and snow accumulated on the windshield, and that, although the windshield wiper was working, it did not keep the glass free from obstruction, for which reason they were compelled to look out of the side windows in order to see ahead. While making the trip, the automobile collided with a bus of the Community Traction Company traveling in the opposite direction. It is urged that Jakubec was guilty of contributory negligence in riding in the automobile under the circumstances disclosed by his evidence, and in failing to keep a proper lookout. We think, however, the verdict and judgment are sustained by sufficient evidence.

Much reliance is placed by counsel for plaintiff in error on the claimed error of the trial court in refusing to give before argument request No. 2 asked by the Community Traction Company, reading as follows :

“If you find that the plaintiff, John Jakubec, when riding in the automobile on the night in question did not use his senses of sight and hearing for his own safety to the extent that a reasonably prudent man would have done under the same or similar circumstances, then you are instructed that John Jakubec was negligent, and, if such negligence contributed to the slightest degree to cause the damage of which plaintiff here complains, then the plaintiff can not recover in this action and your verdict must be for the defendant, the Community Traction Company."

This court is of opinion that the trial judge committed no error in refusing to give this requested instruction on account of the following language in the closing part, to wit :

“If such negligence contributed to the slightest degree to cause the damage of which plaintiff here complains, then the plaintiff can not recover in this action and your verdict must be for the defendant, the Community Traction Company.”

Passing the improper use of the word “to” in the first line, which is apparently a clerical error, the requested instruction does not require that negligence of a plaintiff, in order to bar a recovery, should be either a direct or proximate cause of the injury to Mm. We know of no -circumstances under which negligence of a plaintiff can bar his recovery in a personal injury case unless that negligence be either the direct or proximate cause of the injury, or in conjunction with the negligence of the defendant be a direct or proximate cause. Remote negligence-on his part can have no more bearing on the rights of the parties than remote negligence on the part of the defendant. The requested instruction would not be objectionable by reason of containing the words “contributed in the slightest degree,” provided the phrase was used in connection with the statement that the negligence must also have been a direct or proximate cause of the injury. Such has been the holding of the Supreme Court, and also the holding of our court in Rogers v. Ziegler, 21 Ohio App., 186, 152 N. E., 781. To give the instruction requested would deprive the injured party of the right of recovery if he were guilty of negligence which contributed in the slightest degree to cause the injury, even though such negligence may have had no relation to the injury except in the remotest way. This, of course, cannot be the law.

In Schweinfurth, Admr., v. C., C., C. & St. L. Ry. Co., 60 Ohio St., 215, 54 N. E., 89, the second propoT sition of the syllabus' explicitly holds that the negligence of the injured person does not bar his recovery unless such negligence “contributed- directly to, or was a proximate cause of, the injury.” In the course of the opinion, at page 220 of 60 Ohio St., 54 N. E., 89, 90, the court quotes with approval the definition of contributory negligence from Beach on Contributory Negligence, wherein it is defined as “such an act or omission on the part of a plaintiff, * * * as, concurring or co-operating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of. To constitute contributory negligence, there must be a want of ordinary care on the part of the plaintiff, and a proximate connection between that and the injury. ’ ’

The same requirement as to proximate or direct connection between the negligence of the plaintiff and the injury is restated in Toledo Railways & Light Co. v. Mayers, 93 Ohio St., 304, 112 N. E., 1014, a case which went to the Supreme Court from this court. The familiar doctrine was again announced in Pennsylvania Rd. Co. v. Rusynik, 117 Ohio St., 530, 159 N. E., 826, 56 A. L. R., 538, and it has already been so held by our court in Gallup, Admr., v. Toledo Terminal Rd. Co., 26 Ohio App., 447, 160 N. E., 493.

The common law- has never taken into consideration negligence of either the plaintiff or defendant unless it is a direct or proximate cause of the injury. The principle was formulated many years ago by Lord Bacon as follows:

“It were infinite for the law to judge the cause of causes, and their impulsions one of another: therefore it contenteth itself with the immediate cause; and judgeth of acts by that, without looking to any further degree.”

This is so fundamental that it seems a work of supererogation to discuss it, and this court would not do so were it not for the fact that careless expressions have sometimes been used which have afforded some basis for the contention that negligence of the plaintiff may bar his recovery, even though it may not be a direct or proximate cause of the injury.

In Behm v. Cincinnati, Dayton & Toledo Traction Co., 86 Ohio St., 209, 99 N. E., 383, the court held it was not error to give a charge as to the negligence of the plaintiff which did not contain a requirement that to be a bar such negligence must be a proximate or direct cause of the injury.

In Woolley v. Cincinnati, Hamilton & Dayton Ry. Co., 90 Ohio St., 387, 108 N. E., 1135, the journal entry shows that a charge omitting the requirement was approved by the court. In Klein v. Goldstein, 91 Ohio St., 388, 110 N. E., 1062, the journal entry shows a similar inaccuracy.

Undoubtedly, in a case where the evidence was not set out in the bill of exceptions, prejudicial error might not appear, and it was so held in Bradley v. Cleveland Ry. Co., 112 Ohio St., 35, 146 N. E., 805.

We find no error in the trial court refusing to give the requested instruction to the jury.

All the other claimed errors have had the careful consideration of the court, but we find none prejudicial to the plaintiff in error, and the judgment will therefore be affirmed.

Judgment affirmed.

Williams and Lloyd, JJ., concur.  