
    No. 70
    ROGNON, Minor etc. v. ZANESVILLE (City)
    Ohio Appeals, 5th Dist., Muskingum Co.
    No. 325.
    Decided November, 1926
    355. DAMAGES — The court may grant a new trial when inadequate damages are returned by a jury when it is evident that the jury did not take into consideration all points applicable to the case at hand.
    465. ERROR — It is not error for a trial judge to charge upon a trespasser when same is not part of pleading and the thing to be determined was an attractive nuisance.
    Attorneys — E. B. Graham for Rognon; T. F. Thompson for City; both of Zanesville.
   HOUCK, J.

Robert Rognon, an infant, commenced his action in the Muskingum Common Pleas against city of Zanesville to recover for the loss of two toes received while playing on a road scraper left by the employees of the city in the street. Trial was had, and a verdict was rendered in favor of Rognon for $362. Both parties asked for a new trial which was overruled and Rognon brings error here, this court holding:

1. The damages found by the jury are inadequate, the injuries are conceded as well as the extent of them, and if Rognon is entitled to recover it should be for a great deal more.

2. In an action to recover damages for personal injuries, a new trial may be granted on the ground of inadequacy of the damages found by the jury, when it appears from the facts proved that the jury failed to take into consideration some of the elements of damages involved in the claim. 81 OS. 463.

3. The court’s charge upon a trespasser does not state the law as to the case at trial because the real issue, and that raised by the pltadings was whether the road grader was an “attractive nuisance.”

Judgment reversed.

(Shields, J. and Sayre, J., concur.)  