
    No. 453
    OHIO TRACTION CO. v. BAIRD
    No. 18769.
    Supreme Court
    Before Supreme Court on motion to direct
    Hamilton Appeals to certify docketed
    Aug. 29, 1924,
    
    
      2 Abs. 531.
    960. PROOF—Street car and auto collision —upon whom rests the burden of proving or disproving contributory negligence in instant case? Direction of verdict—traffic speed—ordinance as evidence—Admissibility of bedside notes of plaintiff—taken in hospital.
    Attorneys—DeCamp, Sutphen & Brumleve, for Company; Bolsinger & Boisinger, for Baird; , all of Cincinnati.
   _ Baird recovered a judgment against the Traction Company in the sum of $28,549.93 for personal injuries sustained as the result of a collision between a street car and his automobile. . The , company set up the defense that Baird violated two ordinances of Cincinnati in turning into the street upon which the collision occurred, without giving any visible -or audible signal that he was -about to -make the turn, and without making sure that the turn coul'd' be executed in safety. The company raised the question'of contributory negligence.

■ 1.; It -is- claimed that the court, committed Íerror in its general charge ih..requiring:that,.: ‘the burden ot proof was upon, .the company to,,' prove all affirmative defense ,by a, preporíd.ér,-\ 'ence ot the'evidence, whereas it is contended'' that the correct-, rule is that the burden of proof to establish contributory negligence rests upon- the:-defendant only when the plaintiffs own testimony does not raise a presumption : .ot such contributory negligence, and iff such , presumption is raised, the burden of proof rests ' upon the plaintiff to remove that presumption. .

2,- That the court .committed error in giving" a special charge which it is claimed -invades the province of the jury by defining what a motorman must do in the exercise of ordin- : ary care and which directs a verdict for -the-, plaintiff without leaving the question of proxi- t mate cause to the jury and entirely disregard's the question of contributory negligence.

3. / It is further contended that the court committed error in refusing to admit the- or-ol traffic in evidence. It was contended that' dinance of Cincinnati which regulates the speed-this ordinance is void and inoperative because it conflicts with GC 12603 and 12608.

It is further contended that the court committed error in admitting the doctor’s and nurses’ bedside notes of the plaintiff while the plaintiff was a patient in the Cincinnati General Hospital on the grounds that they were public records.

It was claimed that the verdict is excessive and returned under the influence of passion and prejudice.  