
    No. 414
    PEANEY v. DAVIS
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1852.
    Decided April 4, 1927
    225. CHARGE TO JURY — 1. Charge of court is erroneous where jury is instructed that “if you find that such laws and ordinances were in full force and effect,” for it is for the court to say what the law was, the statutes and ordinances, or whether any of them, were in full force and effect.
    2. The charge, “The care that was reasonably practicable” is erroneous, for that might be more or less than ordinary care, depending on how different minded persons would understand it.
    First Publication of this Opinion
   LLOYD, J,

Cleo Davis commenced an action in the Lucas Common Pleas against Newton Peaney to recover damages by reason of personal injuries claimed to have been sustained by her in an automobile collision in the city of Toledo. A verdict for $20,000 was returned in her favor, upon which judgment for $15,000 was rendered, a remittitur of $5000 having been ordered by the court and consented to.

Error was prosecuted and a reversal of the judgment was sought upon alleged errors in the charge of the court, excessive verdict and same being against the weight of the evidence. The Court of Appeals held:

Attorneys — George H. Lewis, W. L. Smith and Wm. H. McLellan, Jr., for Peaney; Miller, Brady & Yager for Davis; all of Toledo.

1. Davis pleaded portions of five ordinances of the city of Toledo, claiming to have been applicable and which were claimed to have been violated by Peaney. These ordinances were offered and received in evidence.

2. In his charge, the court submitted the ordinance provisions and also read sections 6310-26, 28 A, 30, 31, and 32 of GC.; and there is some controversy as to whether or not the ordinances and statutory provisions were consistent and applicable to the issues involved.

3.' The court further said: — “It is a provision of law that violation of state laws and also violations of city ordinances,-is negligence, their violation is negligence per se. So if you find that such laws and ordinances were in full force and effect at the time of the occurrence in question, and you further find that the defendant violated the provisions of such ordinances or laws, then - - - defendant was guilty of negligence - - - - where a state law and city ordinance are in conflict the State law prevails.”

4. The court, in so charging, erred to the prejudice of the defendant, Peaney. It was for the court to say what the law .was and whether these, statutes and ordinances, or any of them, “were in full force and effect,” and to submit to and instruct the jury only as to the statutes and ordinances which applied to the issues involved.

5. In charging that if “there was exercised all the care that was reasonably practicable,” the court erred, for that might be more or less than ordinary care, accordingly as different minded persons .might understand and apply it.

6. A majority of this court believing the verdict to be excessive and that none of the alleged errors, except those to which attention has been called, is prejudicial to Peaney, judgment is reversed.

(Richards & Williams, JJ., concur.)  