
    No. 529
    ALBERT T. BECK v. HARRY L. BINGHAM
    No. 18747.
    Ohio Supreme Court
    On motion by Beck to require Hamilton Common Pleas to certify record.
    Docketed Aug. 8, 1924.
    2 Abs. 498.
    118. AUTOMIBILES — Negligence — Relation of Scintilla Rule and direction of a verdict.
    Attorneys — Cohen, Mack & Hurtig, for plaintiff. Taft, Stettinuis & Hollister, Cincinnati, for defendants.
   The motion of Beck makes the statement of his ease as follows:

This action presents as the main question, whether in an action Where it is incumbent upon plaintiff to prove negligence as an essential fact, and his evidence is incredible as a matter of law, does the “Scintilla Rule” require a submission of the cause to the jury, or is it the duty of the court to direct a verdict for defendant ? His contention is that in such ease the court must direct such a verdict, and that such action does not infringe upon the “Scintilla Rule,” assuming such rule to be the law of Ohio-

The action arose out of a collision at the corner of two streets in Cincinnati, between the touring car of Beck and a truck of Bing-ham’s. Plaintiff’s petition sought a recovery for personal injury and property damaged, claiming that he, Beck, had the right of way under the ordinances of Cincinnati and alleging that the truck of Bingham was driven at a speed in excess of 20 miles -per hour, -and that defendant attempted to pass in front of Beck’s car and failed to give it the right of ■way, and it ran into the truck.

The answer admitted the collision, but denied all negligence and' alleged that the collision arose by reason of plaintiff’s negligence in driving his truck at a rate of speed in excess of that permitted by law, failing to give Warning of its approach and failing to have the same under proper control when approaching the intersection of said streets. By way of cross-petition defendant, Bingham, sought a recovery for damages by reason of plaintiff’s truck striking defendant’s automobile while plaintiff was operating his truck in the negligent manner hereinbefore stated.

At the conclusion of plaintiff’s case in the trial court, and also at the conclusion of the entire case, motions were made for an instructed verdict for defendant, it being claimed by defendant the case showed that it was physically impossible for the collision to have arisen as stated by plaintiff, and that his testimony, as a matter of law, was incredible. That at the close of the defendant’s evidence it showed that the accident occurred entirely by reason of the negligence of the plaintiff.  