Citations
- 79 Ohio App. 345
Full opinion text
Ross, J.
This is an appeal on questions of law from a judgment of the Court of Common Pleas of-Hamilton county in favor of the plaintiff.
The plaintiff loaned her automobile to her husband who used it in his business as a real estate agent. The plaintiff was the bailor of the vehicle, the husband, the bailee.
The husband drove the car from a parked position at the curb of Erie avenue in the city of Cincinnati into the path of a streetcar operated by employees of the defendant. There is evidence that in so doing he was guilty of negligence. There is substantial evideuce that the defendant was also guilty of negligence in that the streetcar was proceeding at an unreasonable speed and that the operator thereof was not keeping a proper lookout.
In other words, there is evidence that the negligence of the husband and the defendant concurred in causing the damage to the automobile of the plaintiff.
The defendant claims that the trial court should have instructed a verdict for the defendant — (1) be- • cause the plaintiff was not the real party in interest.
The basis for such contention is that the automobile of the plaintiff was taken to a garage for repairs, that the repairs were made, and that the husband paid the repair bill; hence, the plaintiff suffered no damage, and if there is any claim against the defendant, it would be that of the husband who would be subrogated to the rights of the plaintiff.
From the evidence it appears that a representative of the garage testified that the husband had paid the bill for repairs. The plaintiff testified that she paid $973.56 for the repairs. Without further amplification of the evidence, the jury was warranted in concluding that the husband paid the bill for his wife, and that she either reimbursed him or gave him the money to pay the.bill. Her testimony is positive that she paid the bill. This disposes of that contention adversely to the defendant.
(2) It is asserted by the defendant that the collision occurred solely through the negligence of the husband. .The evidence does not sustain such contention. There was substantial evidence that the streetcar was operated at an unreasonable speed and that the motorman was not keeping a proper lookout, had his head turned, and was talking to a man near him just before the collision occurred.
(3) It is claimed by the defendant that the husband was guilty of contributory negligence. Sucb negligence, even if it existed, could not be imputed to tbe bailor, plaintiff. 5 Ohio Jurisprudence, 121, 122; Conart Motor Sales, Inc., v. Shullo, 70 Ohio App., 423, 46 N. E. (2d), 415.
It is claimed also by the defendant that tbe court erred in giving special charges in effect stating tbat tbe negligence, if any, of tbe husband, bailee, could not be imputed to tbe plaintiff,. bailor. Tbe court committed no error in so instructing tbe jury.
Tbe defendant claims error also in tbe refusal of tbe trial court to give tbe following special charge:
“Tbe court charges you tbat tbe motorman had a right to assume tbat tbe plaintiff’s husband would see what ordinarily prudent persons, situated in tbe same or similar circumstances as those of tbe operator of tbe automobile, would see; and, if you find that* ordinarily prudent persons so situated would have seen tbe approach of tbe streetcar and would not have started tbe automobile until tbe streetcar bad passed and plaintiff’s husband failed so to do, then be was negligent.”
There were only three issues in tbe case: (1) Was tbe defendant negligent? (2) Was tbe plaintiff damaged as tbe proximate result of sucb negligence? (3) Tbe amount of damages.
If tbe defendant was not negligent, then tbe plaintiff could not recover. If tbe defendant was negligent and sucb negligence was a proximate or contributing cause of tbe damage to tbe automobile of plaintiff, whether tbe negligence of some person other than defendant concurred in causing sucb damage is wholly immaterial.
Tbe proper defense of tbe defendant was limited to a denial of its negligence. Allegation of tbe negligence of a third party had no place in the case. That charge, therefore, which dealt with the negligence of a third party applied to an extraneous issue. Whether the jury under the special charge would find negligence could make no difference. Suppose a special interrogatory had been predicated upon that special charge. An answer of negligence or no negligence would not have been pertinent to issue properly presented to the jury which was whether the defendant was negligent. The court properly refused the special charge.
Contrary to the claim of the defendant, evidence appears in the bill of exceptions sustaining the amount of the verdict.
The defendant makes some claim also that the action of the jury constituted a “quotient verdict.” Even if there were any substantial evidence to this effect, which does not appear, there is no showing that the jury agreed in advance that it would be bound by a quotient finding or that the verdict was not the verdict of the jury. 39 Ohio Jurisprudence, 1104; Kidwell v. McPherson, 28 Ohio Law Abs., 157; Smith v. Lightfritz, 22 Ohio Law Abs., 181.
For these reasons, the judgment of the Court of Common Pleas is affirmed.
Judgment affirmed.
Hildebrandt, P. J., Matthews and Ross, JJ., concur in the syllabus,’ opinion and judgment.