
    Kelcik, a Minor, v. The Cleveland Ry. Co.
    
      Negligence—Directed verdict upon opening statement—Counsel to be given opportunity to amend or supplement— Averment of specific negligence necessary—Collision between automobile truck and street car—Presumption of negligence not raised by collision, when—New trial for newly discovered evidence—Insufficient record for review in error proceedings.
    
    1. On motion to direct verdict for defendant on opening statement of counsel for failure to state cause of action, counsel should be given opportunity to amend statement to constitute cause of action, and liberal construction should be given statement that it may be allowed to stand.
    2. Injury resulting from collision between truck and street car on tracks does not raise presumption of negligence by street car company.
    3. Where truck on highway collided with street car on tracks, it was necessary for plaintiff injured thereby to specifically aver negligence of street railway company so that recovery might be had, in absence of any contributory negligence, as matter of law, attributable to plaintiff.
    4. Where counsel for plaintiff in opening statement pointed out no specific negligence of street railroad as cause of collision with plaintiff’s truck, verdict was properly directed for defendant.
    5. Motion for new trial for newly discovered evidence, not supported by oral or written evidence, resulting in no record of newly discovered evidence in bill of exceptions, cannot be considered on error.
    (Decided January 24, 1927.)
    Error: Court of Appeals for Cuyahoga county.
    
      Mr. V. J. Pugher, for plaintiff in error.
    
      Messrs. Squire, Sanders & Dempsey, for defendant in error.
   Sullivan,

J. This case comes into this court on error from the court of common pleas of Cuyahoga county, and it is sought to reverse the judgment of the court helow on the ground that the court committed error in sustaining a motion of the defendant below to direct a verdict, warrantable in law, under the opening statement of plaintiff’s counsel. It is a well-settled proposition of law that where a motion is directed upon the opening statement of counsel, upon apparent failure to state a cause of action, counsel should be given every opportunity to amend, explain, or supplement his statement, so that, if possible, it may be brought within the purview of the law, which requires certain legal ingredients to constitute a cause of action, and a liberal construction should be given the statement, so that if possible it may be allowed to stand, in order that the well-known principle that every litigant should have his day in court may be vindicated.

It appears, however, that in the case at bar, the basis of which was an injury resulting from a collision between a truck and a car of the street railway company, neither in the petition nor in the opening statement is there any claim of any specific negligence, except that it is asserted, as a conclusion of law, that because there was a collision there is a presumption of negligence on the part of the street railway company.

It appears that the case at bar is not within that class of cases where that principle prevails, because the street car was on the track, and the truck, along the highway, collided with it. Consequently a situation arose which ¡made it necessary specifically to aver the negligence of the street railway company, so that a recovery might be had in the absence of any contributory negligence, as a matter of law, attributable to the plaintiff. Consequently there is no presumption of law as to negligence in the case at bar, and no allegation or statement of counsel upon which could be predicated any act, which could proximately, as a matter of law, cause the injury.

However, it is claimed that there was a motion for a new trial made, in which the question of newly discovered evidence arose, but it appears that there was no oral or written evidence to support the motion. Consequently there is no record of the newly discovered evidence in the bill of exceptions, and therefore this matter is beyond the pale of consideration.

Holding these views, the judgment of the lowei court is hereby affirmed.

Judgment affirmed.

Levine, P. J., concurs.

Vickery, J., not participating.  