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Electric & Gas Co. v. Orrville.

is of the opinion that the filing of an appeal bond and the perfecting of an appeal suspends the order of the court of common pleas dissolving the injunction and thereby leaves the same in full force. This was held by the district court of Hamilton county in the case of Caldwell v. High, 6 Dec. Re. 1037 [9 Am. L. Rec. 692], and the judgment of that court was affirmed by the Supreme Court. The statute exists in practically the same form as it existed when this decision was made, and we hold that from as it existed when this decision was made, and we hold that from and after the filing of the appeal bond the injunction allowed in the court of common pleas was in full force, and we find from the evidence that the different defendants charged with violating the order of injunction did violate the

And while they claim that such violation was upon the advice of their counsel, the city solicitor, we think that is not a defense, although it may be considered in mitigation of the actions of the defendants in violating said injunction.

It is the judgment of the court that the charges against the defendants named constituting the board of public affairs in said village, together with H. D. Shannon, one of the contractors of said village, are sustained, and that each of them should pay a fine of $25, together with an equal share of any costs made in such proceedings in contempt.

Motion for a new trial, if one is filed, will be overruled and exceptions may be noted.

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4 0. C. C. Vol. 38

Hamilton Court of Appeals.

CHARGE TO JURY.

[Hamilton (1st) Court of Appeals, 1915.]

Jones, Jones and Gorman, JJ.

GEORGE C. BUTTEMILLER V. HOWARD WILLIAM SCHMID, HIS NEXT FRIEND.

Defendant Cannot Complain of Instruction on Burden of Proof Prejudicial to Plaintiff, 'Only.

An instruction that "by burden of proof is meant the burden or duty of satisfying the minds of the jury of the truth of all the material facts alleged by the plaintiff and denied by the defendant," too great a burden is imposed upon the plaintiff, but being prejudicial to the plaintiff only the defendant can not complain of the error so committed.

Robertson & Buchwalter, for plaintiff in error.

Jos. Lemkuhl, for defendant in error.

JONES, E. H., J.

Plaintiff in error is a physician against whom judgment was recovered in the court below in favor of defendant in error for the sum of $1,000, assessed by the jury as damages for malpractice in connection with the treatment of plaintiff for an injury.

By far the greater part of the brief for plaintiff in error. as well as the oral argument of counsel, is devoted to a discussion of the evidence. We deem it unnecessary to review the evidence in this opinion. It is sufficient to say we do not feel at all inclined to disturb the verdict of the jury or the judgment entered thereon for insufficiency of evidence to support it.

The other errors alleged relate to the charge of the court. Complaint is made of the following portion of the charge:

"By burden of proof is meant the burden or duty of satis fying the minds of the jury of the truth of all the material facts alleged by the plaintiff and denied by the defendant."

The case of Cincinnati, H. & D. Ry. v. Frye, 80 Ohio St. 289 [88 N. E. Rep. 642; 131 Am. St. Rep. 709], is cited as authority to show that the word "satisfying" as used in this

Buttemiller v. Schmid.

In

portion of the charge is prejudicial to the plaintiff in error. the case cited it appears that the word "satisfied" was used by the trial court in its charge in connection with the attempt of the defendant to establish the defense of contributory neg ligence. Crew, C. J., in his opinion, on page 300, said:

that the

"By this instruction the jury was told, not only that the burden of proof was on the defendant to establish its affirmative defense of contributory negligence by a preponderance of the evidence, but that if the defendant was negligent as charged, then plaintiff was entitled to a verdict 'unless the defendant has so made out the truth of its affirmative defense.' And the jury was thereby further told and instructed that such affirmative defense was so made out, 'If the defendant has satisfied your minds by a preponderance of the evidence plaintiff was guilty of negligence which contributed directly and proximately, together with the alleged negligence of the defendant, to produce this injury.' This instruction, therefore, in effect, imposed upon the defendant the requirement-if it would make available the defense of contributory negligence that it establish by a preponderance of the evidence the truth of such defense to the satisfaction of the jury. This was to place upon the defendant the obligation and burden of producing or furnishing a higher degree of proof than the law demands or exacts, and was therefore erroneous.

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In the case now under consideration the court in the portion of the charge in which the word "satisfying" is used erred not against the plaintiff in error, but to the prejudice of the defendant in error, upon whom too great a burden was imposed. It therefore follows that such error constitutes no ground for reversal in this case, as it did not result prejudicially to the party complaining.

The word "satisfy" was also used by the trial court in its charge on page 294 of the bill of exceptions, where the court charged the jury upon the doctrine of contributory negligence. This portion of the charge was later entirely recalled by the court, and the jury was instructed to pay no attention whatever to that part of the charge.

Hamilton Court of Appeals.

Our attention is also directed, by plaintiff in error, to the following language of the court:

"You have a right to accept or reject part or all of the testimony of a witness, and give credit to those witnesses, who in your opinion are entitled to credit."

Pittsburg, C. C. & St. L. Ry. v. Pritz, 90 Ohio St. 419, is relied upon in support of this assignment of error. The language there passed upon is not the same as the language here used. When considered in connection with the portion of the charge which immediately precedes it, we do not think that this portion of the charge is erroneous.

We therefore find no error in the proceedings below and the judgment will be affirmed..

Jones and Gorman, JJ., concur.

CARRIERS-STREET RAILWAYS.

[Hamilton (1st) Court of Appeals, June 14, 1915.]

Jones, Jones and Gorman, JJ.

CINCINNATI TRAC. Co. v. WILLIAM BURKHARDT.

1. Starting Street Car Before Passenger Seated not Negligence per se. To start a street car before a passenger who has just stepped upon the car has had time to be rated, is not negligence per se. 2. Carrier's Care of Passenger is Highest Degree Used by Ordinarily Careful Persons Under Like Circumstances.

The degree of care required of a carrier toward a passenger is not to be measured by the care which would be exercised under similar circumstances "by very careful and skillful employees," but it is the highest degree of care which ordinarily careful and skillful persons would use under like circumstances.

3. Care Required of Crippled Passenger.

To charge that a passenger in a crippled condition was bound to exercise "greater care" than others, is erroneous, but the jury should be instructed that in determining whether he exercised ordinary care they should consider his crippled condi. tion and any burden or impediment to his movements arising therefrom.

Traction Co. v. Burkhardt.

ERROR.

Kinkead & Rogers, for plaintiff in error.

Cogan, Williams & Ragland and Thos. L. Michie, for de fendant in error.

JONES, E. H., J.

This action was brought in the common pleas court by the defendant in error against the plaintiff in error for damages by reason of injuries received by him while boarding a car of the traction company.

The complaint in the petition was that the car was started with a sudden jerk, while plaintiff was in the act of boarding it and before he had reached a seat in the car, causing him to be thrown to the street and severely injured. The charge of negligence was denied by the traction company in its answer, which also contained an allegation of contributory negligence on the part of plaintiff. The jury returned a verdict in favor of the plaintiff for $3,000, which the trial court reduced to $2,000, for which sum judgment was rendered in the court below.

A number of errors are assigned in the petition in error and urged by counsel in oral argument.

The first alleged error upon which we deem it necessary to comment in this opinion relates to a portion of the general charge of the court, as follows:

"If you find that the defendant was not negligent, you need go no further, but must bring in a verdict for the defendant. If you find that the defendant was negligent in suddenly starting the car without notice, before the plaintiff had the opportunity to be seated, and that such negligence was the direct cause of the injury to plaintiff, you will bring in a verdict for the plaintiff unless you find that the plaintiff was also negligent, and that his negligence operating concurrently with the defendant's negligence, if any, directly contributed as a cause of the accident."

It is claimed that the court erred in the use of the language "if you find that the defendant was negligent in suddenly start

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