
    No. 311
    SHIELDS v. CLEVELAND RAILWAY CO.
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4747.
    Decided Jan. 14, 1924
    829. NEGLIGENCE — Instruction upon contributory negligence in absence of pleadings or evidence showing same is erroneous — If proper court should indicate who has burden of truth.
    Attorneys — Bernsteen & Bernsteen, for •Shields; Squire, Sanders & Dempsey, for Railway Company; all of Cleveland.
    Middleton, P. J., Sayre and Mauck, JJ., Sitting
   MAUCK, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Clara Shields brought an action for personal injuries against the Cleveland Railway Co. The plaintiff was injured while alighting from a street car. The only evidence of negligence was that given by the plaintiff’s husband to the effect that the conductor had pushed another passenger against plaintiff while' the latter was, with raised foot, about to step from the car. The court in its charge submitted to the jury the issue of contributory negligence. It also instructed the jury that the burden of proof was upon the plaintiff. As the jury returned a verdict for the defendant, plaintiff prosecuted error. In reversing the judgment of the lower court, the Court of Appeals held:

1. As there was no issue made of the prudent conduct of the plaintiff or no defense of contributory negligence and no evidence thereof, the court committed error in defining contributory negligence as one of the issues in the case.

2. If any charge upon contributory negligence had been proper, it would have been necessary for the court to indicate where the burden of proof rested.

3. It cannot be said as a matter of law that the verdict was manifestly against the weight of evidence.  