
    SEBREE, a minor, etc v CRIDER
    Ohio Appeals, 1st Dist, Hamilton Co
    No 4260.
    Decided March 20, 1933
    
      Nicholas Bauer and Alfred Pían, Cincinnati, for plaintiff in error.
    August A. Rendigs, Jr., Cincinnati, and Edward Lee Meyer, Cincinnati, for defendant in error.
   OPINION

By HAMILTON, PJ.

The record does not disclose any finding of the jury or any action of the court with reference to the cross-petition for damages to the defendant’s truck. Defendant filed no cross-petition in error. It would, therefore, appear that the claim in the cross-petition was waived by the defendant.

Error is claimed in the charge of the court and an additional specification of error that the verdict and judgment are against the weight of the evidence.

We have examined the charge of the court, and do not find any error requiring a reversal of the judgment on that ground.

We are, however, somewhat at a loss to understand the verdict of the jury upon the weight of the evidence.

The weight of the evidence as disclosed by the record is to the effect that the driver of the truck, on a. curve at about the place of the collision, maintained his position in the center of the road; that the Ford roadster was on the right-hand side of the road, on the north side; that the driver of the Ford turned his machine over partially on the gravel road, off the concrete. Notwithstanding this position of the Ford, it was struck back of the front fender, carried by the truck a considerable distance on the concrete, pushed over the gravel bank some .12 or 15 feet from the roadway, and crushed against a tree, the radiator of the truck resting against the Ford in that position.

The manner of the accident as related by disinterested witnesses in a clear and concise way, supported by the physical facts leads this court to the conclusion that the verdict and judgment are manifestly against the weight of the evidence.

While the evidence of the defense tended to show a different state of facts, the physical facts discredit the evidence of the defense as to how the accident happened.

Since the case will have to be retried, we will not further comment on the evidence.

For the reason that the verdict and judgment are against the weight of the evidence, the judgment will be reversed, and the cause remanded to the Court of Common Pleas for a new trial.

CUSPIING and ROSS, JJ, concur.  