
    No 323
    OHIO TRACTION CO. v. BAIRD
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2424.
    Decided Aug. 4th, 1924.
    191.—BURDEN OF PROOF—Is upon defendant to show contributory negligence, when evidence of injured person does not raise presumption of.
   BUCHWALTER, J.

This action was for damages for personal injuries sustained by Harold Baird, in a collision of his machine and a car of the Ohio Traction Co. The action was brought in the Hamilton Common Pleas where judgment in favor of Baird was rendered. Error was prosecuted and the Traction Co. claimed that the admission in evidence by the court, of the reports from the hospital and the giving of special charges were errors.

The company also contended that the charge of the court stating that it was upon the company to prove contributory negligence by preponderance was erroneous. The Court of Appeals held:

Note—A fuller statement of this case will be found in the OS. Pen. 3 Abs. 51.

Attorneys—L. J. Brumleve, for Company; Bolsinger & Bolsinger, Clark & McCauley, for Baird; all of Cincinnati.

1. It was upon the Traction Company to carry the burden of proving contributory negligence on part of Baird, because the evidence in his case did not raise the presumption of contributory negligence.

2. Both the doctor and the nurse testified at the trial, in detail, on all questions contained in the hospital report and this was not prejudicial to the company.

3. The special charges given at the request »of Baird were not prejudical to the Company. Judgment of lower court affirmed with modification as to interest.  