
    BAUMAN v. HANLON.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3093.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 Cb2) There is no rule of law requiring court to charge on an 'issue not made by the original pleadings or any amended pleadings, but which merely happens to have been injected into the case by the testimony.
    NEGLIGENCE.
    (370 C3) Charge of court in personal injury to boy by reason of explosion of dynamite cap found in roadway, held proper.
    Error to Common Pleas.
    Judgment affirmed.
    Bert H. Long and Alcorn & Alcorn, Cincinnati, for Bauman.
    Chester S. Durr, Cincinnati, for Hanlon.
    STATEMENT OF FACTS.
    Earl Bauman, a boy fourteen years of age, picked up on a public roadway in Hamilton County what afterwards was found to be a blasting cap. While playing with it, a few days later, it exploded and injured him.
    The defendant, a road contractor, in excavating for the foundation of a bridge, blasted rock in the bed of a creek about 150 feet from where the boy found the cap.
    The jury returned a verdict for the defendant.
    The question is, whether the issues in a case are made by the) pleadings; or, whether a new issue may be made by evidence that was introduced without objection.
    The allegation of negligence in the petition is: “In doing said work defendant used blasting caps and negligently and carelessly threw unexploded blasting caps on said road, which is a regularly laid out highway in said county.”
    At the close of plaintiff’s case, the defendant, without objection, introduced evidence as to the care used while the caps were in his custody, which briefly stated, was — that he purchased them at Sharonville, carried them to the camp, gave them to a colored man at the camp; that this .man had charge of .them, and when he wanted one or more caps, the colored man gave them to him.
    Counsel for plaintiff in error contends that the trial court erred in instructing the jury that defendant was required to use ordinary care in the prosecution of the work in question, and claims that the court should have charged that “the law requires those who use dangerous agencies in the prosecution of their business to observe the greatest care in the custody and use of them,” citing Railway Co, v. Shields, 47 Ohio St. 387.
    Plaintiff did not move that the petition be amended to conform to the evidence. The allegation of the petition was that the defendant threw caps on the roadway. Evidently the trial court entertained the view that this allegation might be established by inference to be drawn from the testimony. He charged as follows: “If the material facts necessary to establish negligence rests upon _ an inference only, the inference must be a rational one, such as could be reasonably arrived at from the facts and circumstances testified to. Any inference or conclusion you may draw from the facts and circumstances testified to must be a rational one, reasonably arrived at from such facts and circumstances.”
   CUSHING, J.

The charge, as given, gave the jury the greatest latitude in determining the question of facts presented. When applied to the issues made by the pleadings in the case at bar, the charge was correct.

Counsel for plaintiff in error argues that the court should have charged on the custody and use of the caps. This would have the effect of injecting into the case an issue introduced by the evidence, but different from that presented by the pleadings.

We are not unmindful of the line of cases which hold that where a, petition, charges negligence, and the answer pleads negligence on the part of the plaintiff, and the testimony warrants the inference of contributory negligence, it then becomes the duty of the court to charge upon the question of contributory negligence.

But we know of no general rule of law that requires a court to charge on an issue not made by the original pleadings or by any amended pleadings, but which merely happens to have been injected into the case by the testimony.

For the reasons above stated, the judgment of the Court of Common Pleas of Hamilton County, Ohio, is affirmed.

(Hamilton, PJ., and Mills, J., concur.)  