
    No. 18511
    Catherine Bradley v. Cleveland Railway Co.
    Error to Cuyahoga Appeals.
    829. NEGLIGENCE—1. Where pleadings present and evidence offered tends to develop the issue of contributory, duty of court to charge jury upon that issue.
    2. Where jury cannot determine by a preponderance, whose negligence proximately caused the injury, case remains in equipoise,
    3. If such issue is so developed, by the evi- and there can be no recovery.
    dence, and the court fails to charge as to the burden of proof, a general exception to the charge, otherwise correct, does not bring such failure into review.
    4. In absence of a bill disclosing evidence offered, a charge that if the jury find that plaintiff failed to use ordinary care which contributed to her injury she could not recover, is not prejudicial error.
   JONES, J.

1.In actions for negligence, where the answer pleads the general issue, or that the injury resulted from plaintiff’s fault, either or both, and the evidence offered at the trial reasonably tends to develop the issue of contributory negligence, it is the duty of the court to charge upon that issue.

2. If from the whole evidence offered at the trial concerning defendant’s negligence and plaintiff’s negligence, the jury are unable to determine by a preponderance of the evidence whose negligence proximately caused the injury the case remains in equipoise and there can be no recovery.

3. If, in such action, the issue of contributory negligence is developed by the evidence, and the court fails to charge upon the burden of proof as to that issue, a general exception to a charge otherwise correct does not bring in review such failure to charge. (Columbus Ry. Co. v. Ritter, 67 Ohio St., 53, approved and followed.)

4. In the absence of a bill disclosing the evidence offered at such trial, a charge that if the jury found that plaintiff failed to use ordinary care and if that failure to use that ordinary care contributed to the injury or injuries sustained by her she could not recover, is not prejudicial error.

Judgment affirmed.

Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  