
    No. 740
    SCHMIDT et v. FRUSTORFER et (two cases) UNION GAS & ELECTRIC CO. v. FRUSTORFER et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Nos. 2937-8-9.
    Decided Feb. 7, 1927.
    First Publication of this Opinion.
    480. EVIDENCE — 923. Pleadings — 874. Ordinances — Not error to plead city ordinance which is in conflict with General Code. Ordinance must be pleaded and proved. If, under State law, ordinance is not available, question would arise on introduction in evidence.
    Error to Common Pleas.
    Judgment affirmed.
    Carl Lehman and Albert H. Leeker, Cincinnati, for Schmidt doing business as The Valley Bus Co.
    J. W. Heintzman, Bolsinger & Benham and Robert Black, Cincinnati, for The Union Gas & Electrig Co1.
    August A. Rendigs, Jr., and Edward Lee Meyer, Cincinnati, for Frustorfer.
   HAMILTON, J.

Lillian Frustorfer secured a judgment for damages for personal injuries growing out of a collision between a bus owned and operated by The Valley Bus Company and a truck owned and operated by The Union Gas and Electric Company. Prom that judgment, Schmidt, doing business as the Valley Bus Company, and the Union Gas & Electric Company filed separate petitions in eiror. The petitions in error are heard together in this proceeding.

It is claimed that the judgment is excessive, that there was error in the charge of the court, that the court erred in overruling a motion to strike certain allegations from the answer.

The matters objected to in the Gas Company’s answer were allegations of negligence on the part of the Bus Company, and allegations setting up a claim under the ordinances of the City of Cincinnati, giving the Gas Company’s truck the right of way.

It is urged that the pleading of the ordinance which, it is claimed, is in conflict with the General Code of Ohio, was improper and should have been stricken out.

It is the law that to avail the pleader of an ordinance of a city, such ordinance must be pleaded and proved. If, under a state law, the ordinance is not available, that question would arise on the introduction of the ordinance in evidence, at which time, the Court would rule on its admissibility.

We see no reason why the ordinance may not be pleaded, and certainly no prejudice could result therefrom.

Counsel, in their brief for the plaintiff in error, Schmidt, criticise the Court’s general charge. Their criticism is directed toward excerpts and separate paragraphs, which, standing alone, might be subject to criticism, but we are of the opinion that they are not substantial, nor of a prejudicial character.

The question most strongly urged is that the verdict is excessive, and was influenced by passion and prejudice.

The verdict of the jury was for $10,000 and the trial court, on the motion for a new trial, required a remittitur of all in excess of $6000 which was done. The extent of the injuries, as shown by the evidence, is sufficient to answer the charge that the judgment is excessive.

(Buchwalter, PJ. and Cushing, J., concur.)  