
    N. Y. C. & ST. L. RD. CO. v. KOVATCH, Admr.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8643.
    Decided May 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE.
    In,action by administrator against railroad, for wrongful death of nine-year-old boy, statement made simultaneously with accident, by five-year-old girl, held properly admitted, in evidence.
    1265. WEIGHT OF EVIDENCE — 328. Court of Appeals.
    In order to reverse case on sole ground that it is contrary to weight of evidence, it is necessary to have unanimous opinion of reviewing court.
    Error to Common Pleas.
    Judgment affirmed.
    Tolies, Hogsett & Ginn, Cleveland, for Railroad Co.
    Henry F. Pattie, Cleveland, for Kovatch, Admr.
   FULL TEXT.

VICKERY, J.

This cause comes into this court on a petition in error to the Common Pleas Court of Cuyahoga County. In the court below the defendant in error was plaintiff and brought this action as the administrator of the estate of David Kovatch, who was a boy about nine years of age and had been killed on Woodland avenue by a train owned and operated by the Nickel Plate Railroad Company. At the trial below, a verdict was rendered for the plaintiff in the sum of Two Thousand Dollars. A motion for a new trial was filed and overruled and a bill of exceptions was taken and a petition in error is filed in this court.

It is urged that the verdict and judgment thereon should be set aside because of two errors:

First: That the court erred in the admission of the statement made simultaneously with the accident, it is claimed, by a little girl five years old: “The engine runn’d over David.”

We have examined the case of State of Ohio v. Lasecki, 90 O.S., page 10, and we think that case is authority for the admission of this evidence and, therefore, we do not find any error in that respect in the instant case.

The only other error complained of is that the verdict of the jury was contrary to the weight of the evidence.

There were two requests couched in proper language by the _ defendant," both of which were given to the jury and in accordance with those requests the jury must have found the issues'in this respect in favor of the plaintiff and there was evidence which would sustain that finding, besides the statement of the little girl already disposed of. On the other hand, however, there was abundance of evidence to the effect that the accident occurred in another and entirely different way and if so, the Railroad Company would not be responsible, and so it is claimed that the verdict is contrary to the weight of the evidence. Personally, the writer of this opinion believes that the verdict is contrary to the weight of the evidence and a majority of the court so believes, but in order to reverse a ease on the sole ground that it is contrary to the weight of the evidence, it is necessary to have the unanimous opinion of the reviewing court, and inasmuch as the coufrt cannot unanimously agree that the verdict is contrary to the weight of the evidence, under the statute and the constitution there is nothing to do but to affirm the judgment. It will, therefore, be affirmed.

(Sullivan, PJ., and Levine, J., concur.)  