
    No. 803
    HAAS v. CLEVELAND RY. CO. et
    No. 19963.
    Supreme Court
    On motion to certify.
    Dock. July 8, 1926;
    4 Abs. 475.
    829. NEGLIGENCE — Where there are joint defendants and a verdict has been directed by the Common Pleas Court in favor of both defendants in an action for damages for alleged negligence, may the Court of Appeals reverse the verdict for one defendant and affirm the other and at the same time find as a matter of law that the plaintiff was guilty of contributory negligence toward the defendant relieved from liability under the affirmance of the directed verdict by the Court of Appeals?
    Attorneys — Bernon, Mulligan, Keeley and Le Fever for Haas; Squire, Sanders & Dempsey for Company; all of Cleveland.
   Helen Haas brought this action originally in the Cuyahoga Common Pleas against the Cleveland Railway Company and the City of Cleveland for damages. The petition alleged that as she stepped from a street-car she injured by reason of a small hole in the ground under the step.

The Common Pleas directed verdicts in favor of both defendants. The Court of Appeals affirmed the Common Pleas in directing a verdict in favor of the Railway Company, but reversed the verdict directed in favor of the City.

In the opinion of the Court of Appeals, Haas was found to have been guilty of contributory negligence as a matter of law and such negligence operated to preclude her from recovery against the Railway Company. The opinion further stated that the city is different in nature and that the court erred in directing a verdict for it.

Haas in the Supreme Court contends:

That the decision of the Court of Appeals is absurd in that the trial court, when the case is retried, will be compelled to find that Haas committed contributory negligence as a matter of law, but that said contributory negligence would be no defense to the city.  