
    No. 105
    CROZIER v. HENRY COUNTY COMM.
    Ohio Appeals, 3rd Dist., Henry Co.
    No. 158.
    Decided Dec. 9, 1925
    301. CONTRIBUTORY NEGLIGENCE — 1. When raised by the evidence, determined by rules applicable to burden of proof and otherwise as if made in the pleadings.
    2. Court properly submitted this issue, although raised by the evidence.
   WARDEN, J.

Stephen Crozier brought an action in the Henry Common Pleas against the board of county commissioners of Henry County, claiming that the county failed and neglected to construct and maintain either guard rails or a hedge fence along the east side of an approach to a bridge more than six feet high; and that such failure and neglect was the proximate cause of injuries sustained by him.

The commissioners answered with two defenses, first, a general denial and second, sole negligence on part of Crozier. The defense of contributory negligence was not plead but was raised by the evidence offered at the trial. The judgment and error was prosecuted to reverse this judgment. The Court of Appeals held:

1. In an action of negligence where defendant’s answer avers that the “death of the deceased was caused wholly through his own negligence” and where from the evidence introduced, the jury might properly find that both defendant and deceased were negligent, it is the duty of the court to instruct the jury as to law governing the situation thus developed; and is error for the court to charge that contributory negligence is not in the ease. Boyland Coal Co. v. McFadden, Admr., 90 OS. 183.
2. Contributory negligence in such case, is not made an issue by the pleadings, but is raised by the evidence properly offered by the parties in support of their claims.

Attorneys — D. D. Donovan and James Donovan for Crozier; George A. Meekison and J. F. Vanderbrook for Commissioners; all of Napoleon.

3. The issue thus raised is to be determined by the same rules as to the burden of proof and otherwise as if made by the pleadings.
4. The trial court properly submitted the issue of contributory negligence in accordance with this rule.

Judgment affirmed.  