
    Behm v. The Cincinnati, Dayton & Toledo Traction Company.
    
      Suit to recover for personal injury — Plaintiff charges negligence of defendant — Defendant alleges negligence of plaintiff — Court’s charge to jury — Latter may consider both allegations of negligence — •Law of pleadings.
    
    1. Where, in a suit to recover for personal injury, negligence of the defendant is charged in the petition which is denied by the answer, and it is in that pleading averred that whatever injuries plaintiff received were caused by his own negligence, which allegation is denied by the reply, and evidence is given at the trial tending to support the claim of each party, it is not error for the court, after stating to the jury the issues definitely made by the- pleadings, and as part of the charge wherein the law generally applicable is accurately stated, to charge that: “The other issue of fact for you to determine is as to whether or not plaintiff himself by his own acts (the alleged negligence which the defendant sets up) contributed to the injury he received.”
    2. Nor is it error for the court, further charging the jury, to say: “And if you find both that the Company was negligent, that the negligence was the proximate cause, but if you find also that the plaintiff by his own negligence contributed to the injuries he received, then, too, you should find in favor of this defendant Company.”
    3. Nor is such charge, as' a whole, calculated to mislead the jury, or in any way work prejudice to the defendant.
    No. 13258
    Decided June 5, 1912.
    Error to the Circuit Court of Butler county.
    The action in the common pleas of Butler was by Behm, plaintiff in error, against the Traction Company to recover for injuries alleged to have been caused by the negligent starting of a car from which plaintiff as a passenger was attempting to alight, by which he was thrown to the -ground and seriously injured. The answer, after admitting defendant’s corporate capacity, denied generally and specifically each and every other allegation of the petition. It further averred that if plaintiff was a passenger and was injured as the petition alleged, the same was caused by the negligence of the plaintiff; that the plaintiff alighted from the car while the same was in motion and running at a high rate of speed, and without waiting for the same to come to a stop, and whatever injury plaintiff received was caused by his own act in leaving the car while the same was in motion. The reply denied that plaintiff was guilty of any negligence or contributory negligence in the premises, and specifically denied all other new matter in the answer.
    At the trial evidence was given by the plaintiff tending to support his claim of negligence of defendant’s agents in charge of the car, and that his injuries were caused by such negligence. Evidence was given by the defendant tending to support the charge of negligence on the part of the plaintiff as alleged, and finally by the plaintiff tending to rebut the allegations of negligence charged against him as set up in the answer. The jury returned a verdict for the plaintiff, and judgment was entered thereon by the trial court. ,This judgment was reversed by the circuit court, and the plaintiff below now seeks a reversal of the circuit court judgment and an affirmance of that of the common pleas.
    
      Mr. C. C. Donley and Messrs. Andrews, Harlan & Andrews, for plaintiff in error.
    
      
      Mr. W. C. Shepherd, for defendant in error.
   Spear, J.

The error found by the circuit court in the charge and for which the judgment was reversed was that the trial court erred in charging the doctrine of contributory negligence. We are of opinion that there is no error in the charge in this respect. The initial proposition in the charge as to plaintiff's negligence complained of is this: “The other issue of fact for your determination is 'as to whether or not he himself, by his own acts (the alleged negligence which the defendant sets up), contributed to the injury he received.” The issue as to negligence, or lack of it on the part of plaintiff, was squarely in the case by the pleadings. The defendant alleged it; the plaintiff denied it. Evidence was given by each party bearing upon it. It therefore became the duty of the court to instruct upon that aspect of the case. The testimony as to the incident showed that it was possible that each party was negligent in respect to bringing about the accident, and if the jury should find that to be the fact, plaintiff was not entitled to a verdict. That point was covered in the charge adequately, and left no opportunity for misapprehension oh the part of the jury. If the plaintiff was negligent and that negligence,-joined with that of the Company, caused the accident, it was quite immaterial what term the learned trial judge applied to it. The substance being properly charged the mere form is immaterial. Covering the precise point the judge said to the jury: “And if you find both that the Company was negligent, that the negligence was the proximate cause, but if you find also that the plaintiff by his own negligence contributed to the injuries he received, then, too, you should find in favor of this defendant Company; or if you find that it was an accident in the purest sense of the word, and nobody was to blame for the injuries which this man received, then you should find in favor of the defendant.” This, in very brief form, covered all phases of the situation as shown by the evidence, and we think is not open to exception. It follows that the judgment of the circuit court will be reversed and that of the court of common pleas affirmed.

This conclusion is not inconsistent with the holding of the court in either Cincinnati Traction Co. v. Forrest, 73 Ohio St., 1, or Cincinnati Traction Co. v. Stephens, 75 Ohio St., 171, as in each of those cases there was neither allegation charging negligence against the plaintiff nor .evidence tending to prove such negligence. The conclusion is also directly supported by the late case of Glass v. The Wm. Heffron Co., ante, 70.

Reversed.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.  