
    BLOOMFIELD v HAFFEY
    Ohio Appeals, 1st Dist, Hamilton Co
    
    No 3716.
    Decided Sept 29, 1930
    John W. Cowell, Cincinnati, for Bloomfield.
    Pogue, Hoffheimer & Pogue and J. C. Culbertson, all of Cincinnati, for Haffey.
   HAMILTON, J.

■Whatever the evidence may be to the contrary, the question is presented and is sufficient to determine whether or not the charges were pertinent,to the issue and related to the facts.

The question is further raised by counsel in the brief for defendant in error that there is no affirmative showing that the special charges complained of were in writing and that this fact must affirmatively appear before they can be considered by the court. That special charges tó be given before argument must be in writing is requisite under the statute, and, since the record fails to disclose that the special charges were in writing, counsel for the defendant in error are probably correct in their position that the special charges could not be / considered.

Counsel for plaintiff in error argue that since there were five special charges requested and three of them given by the court and two refused, the presumption arises that the charges were in writing, although the record fails to so show. We know of no law which gives rise to any presumption of a fact as suggested by counsel. However, that may be, we incline to the view that the trial court was satisfied when it gave special charge No. 5 that it covered the law as requested in special charges Nos. 3 and 4, in so far as they were correct.

Special charge No. 5 is as follows:

“I charge you that if you find that there were railroad tracks in or about the center, of Front Street, this does not excuse the defendant from proceeding to the right of and beyond the center of the intersection of Front and Baymiller Streets if the space on the south side of the tracks was open to traffic.” '

We are of the opinion that this charge covers the point, and it is not necessary to reiterate the same in other special charges.

For the reasons given, the judgment of the court of common pleas of Hamilton County is affirmed.

Cushing, PJ, and Ross, J, concur.  