
    Kelley, a Minor, v. The Ohio Traction Co.
    
      Negligence—Charge to jury misleading and prejudicial—Issues, care to be exercised and proximate cause not properly stated—Measure of damages not based on proof—Special request may be made by reference to reported syllabus, when—Street car passenger, riding on step, struck in passing truck.
    
    1. In street car passenger’s action for injury by truck, which car was passing, charge, not stating issues, but only that plaintiff complained of defendant’s negligence, and that defendant claimed plaintiff was negligent, and that carrier owed highest degree of care to passengers, later discussed as reasonable care, was misleading.
    2. In passenger’s action against street railway for injuries, charge that “it is for you to say what was cause of accident, not the proximate cause,” not stating what was meant by proximate cause, was misleading and prejudicial.
    3. Charge advising jury to assess amount of damage to which they thought injured passenger was entitled, instead of such damages as' are shown by proof, held misleading.
    4. In street car passenger’s action for injury when car was passing truck, charge, involving issue of negligence alleged in petition, as to duty of carrier’s employes in attempting to pass stationary truck in close proximity to street car, requested by reference to syllabus of reported case, should have been given.
    (Decided January 10, 1927.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Joseph Lemkuhl, for plaintiff in error.
    
      Messrs. De Camp, Swtphin & Brumleve, for defendant in error.
   Buchwalter, P. J.

The action was for damages for personal injuries. The jury returned a verdict for the defendant company, upon which judgment was entered. Error is prosecuted to reverse that judgment.

The plaintiff, a minor 17 years of age, brought the action by his father, his next friend.

The petition alleged that between 1 and 2 o’clock in the afternoon on the day in question the minor plaintiff boarded one of defendant’s cars, and paid his fare; that the car was extremely crowded; and that he could not get a seat or standing room in said car, and was compelled to stand on the step leading to the rear platform; that while so standing he was struck in the back by a coal truck, which truck was standing on the street as the car passed.

The allegations of negligence set forth in the petition were that the car was permitted to be greatly overcrowded, by reason of which the minor plaintiff was compelled to stand on the step; that a sufficiently safe place in which to ride was not afforded plaintiff, who was a passenger for hire; that said car was driven at a fast and dangerous rate of speed past a truck; that the motorman knew, or in the exercise of ordinary care should have known, that, owing to the crowded condition of said car he could not pass the truck in safety; that defendant’s servants did not ascertain whether or not the car and the passengers could get past said truck in safety; and that defendant’s agents and servants did not give any notice, signal, or warning to the minor plaintiff of being about to pass such truck. The answer denied the allegations of negligence of the petition, and alleged sole negligence on the part of the minor plaintiff.

A reply was filed, denying the allegations of sole negligence.

Two grounds of error are assigned: First, that the verdict and judgment are manifestly against the weight of the evidence; second, error in the charge of the court.

We have examined the record, and do not find that the verdict and judgment are manifestly against the weight of the evidence.

The charge of the court is misleading. The court did not state the issues, but merely stated that the plaintiff complained of negligence of the defendant company, and that the defendant company claimed that the plaintiff was negligent. In reference to the degree of care required of a carrier of passengers, the court first charged that it owed the highest degree of care, and later discussed it as reasonable care. The charge on proximate cause did not state what is meant by proximate cause, and, at one place, the court says: “It is for you to say what was the cause of the accident, not the proximate cause.” We think this portion of the charge was misleading and prejudicial. The jury were also advised to assess the amount of damage to which the jury thought the plaintiff was entitled, instead of “such damages as are shown by the proof.”

Error is claimed in the refusal of the court to charge with reference to the duty of the employes of the defendant company in attempting to pass a stationary truck, which was in close proximity to the car. This was one of the elements of negligence alleged in the petition, and concerning which testimony was given, and, while counsel for plaintiff did not specifically draft a charge which he wished the court to give, he did, however, refer to the syllabus of a reported case, and ask for a charge in line with that syllabus. In view of the fact that this was one of the issues, it should have been charged upon.

Finding that there is error in the charge of the court prejudicial to the plaintiff in error, the judgment of the court of common pleas will be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Hamilton and Cushing, JJ., concur.  