
    No. 313
    CINCIN. TRAC. CO. v. KLINKENBERG, Admrx.
    No. 19682.
    Supreme Court
    On motion to certify.
    Dock. March 11, 1926;
    4 Abs. 176.
    1235. VERDICT — Where the facts show a presumption of contributory negligence (301) on the part of a deceased party and this presumption is not directly controverted by any evidence, should a verdict be directed for the defendant?
    480. EVIDENCE — In an action by the personal representatives of a deceased party for wrongful death, is it error to permit evidence to be introduced to show the gross earnings and profits of a business conducted by the deceased?
   Elle Klinkenberg, as administratrix of the estate of Otto Klinkenberg, brought this action originally in the Hamilton Common Pleas against the Cincinnati Traction Co. for damages for the wrongful death of the deceased. It appears that the deceased was driving his automobile east on Harrison Avenue in Cincinnati; that the street Was 44 feet wide and that a single track of the Traction Co. ran westwardly in the center of the street, which was paved. The space between the tracks and the curb was 17 feet wide. With nothing to obstruct the view of either the decased or motorman operating the street car the left front end of the street car collided with the right front end of the automobile, thereby killing the deceased. The evidence disclosed no reason why the automobile could not have been turned out of the pathway of the street car.

The administratrix was permitted to testify concerning the gross earnings and profits of a business which belonged to the1 deceased over the company’s objection. The judgment of the Common Pleas for $15,000, rendered upon the verdict in favor of Klinkenberg, was affirmed by the Court of Appeals.

The Company, in the Supreme Court, contends:

1. That the Common Pleas erred in refusing to grant a motion to direct a verdict for the company at the close of all the evidence.

Attorneys — Leo J. Brumleve, for Company; Galvin & Bauer and Bert H. Long, for Klinkenberg; all of Cincinnati.

2. That the court erred in permitting the administratrix to prove the gross earnings and profits of the business conducted by the deceased at the time of his death because the measure of damage is the pecuniary loss which results from the loss of the deceased’s efforts, which would be the compensation ordinarily paid to others for rendering like services.  