I concur in the result reached in the opinion of the Chief Justice, affirming the judgment for defendant.
The trial court admitted the answers to the following questions asked defendant as a witness on the trial before a jury:
"Q. Were you arrested or convicted of the charge of reckless driving?"
"Q. Were you arrested or convicted in connection with this accident?"
"Q. Or any other accident?"
Defendant's answers were in the negative. Defendant claimed that this testimony was admissible to remove an impression that the jury was assumed to have received from the offer and reception in evidence of sections of the city ordinance defining negligent and reckless driving. The supposed impression was to the effect that defendant had been arrested on a charge of violating the ordinance. Plaintiff had advanced no such claim. Introduction of the sections of the ordinance in evidence did not prove, nor tend to prove, anything as to defendant's conduct nor indicate that he had been arrested, but merely cited a rule of conduct. The ruling admitting the quoted testimony indicated that the judgment of officers of the law could be considered by the jury in arriving at a conclusion as to defendant's negligence. The trial judge did not expressly so rule, but the ruling did not limit the purposes for which the testimony could be considered and thus left it to the jury to infer that nonprosecution *Page 44 should be considered as evidence of want of merit in the claim of defendant's guilt and the ruling permitting the testimony to be given served no proper purpose. The negative answers indicated to the jury that the officers of the law did not think there was sufficient proof of defendant's negligence or reckless driving to justify his prosecution. Wolfe v. Baskin, 137 Ohio St. 284 (28 N.E. [2d] 629); Paul v. Drown, 108 Vt. 458, 461 (189 A. 144, 109 A.L.R. 1085, 1087).
If an officer of the law specially charged with the duty of prosecuting negligent drivers had given testimony as of his personal knowledge which if believed would establish guilt and had failed to prosecute, evidence of such inaction on his part might be considered admissible as tending to contradict his testimony. That situation did not arise in the instant case. So far as shown, no officer witnessed the accident nor knew anything important about it until after plaintiff had been knocked down.
Further, the questions objected to were so broad that they cover inaction by officers not witnesses and by direct inference the answers imported into the testimony the opinions of even such officers on the merits of the case unfavorable to plaintiff's claim that defendant was negligent. However, plaintiff had but two witnesses who claimed to know how the accident happened. Of these, the taxi driver was impeached by his own written statement; his passenger was in a moving vehicle, not well situated to discern whether plaintiff moved slightly out of the safety zone and against the side of defendant's truck. Four disinterested witnesses for defendant were standing still watching plaintiff's actions in getting out of the way of other traffic while she crossed against the red light and they were better able to observe whether plaintiff *Page 45 went out of the safety zone a great enough distance to cause contact with the truck.
The testimony taken in its entirety greatly preponderates in favor of the defense and we conclude that the jury in arriving at their verdict must have been persuaded by the testimony of several eyewitnesses without necessity of relying upon the erroneously admitted testimony above quoted. I therefore concur with the Chief Justice in determining that the ruling admitting the quoted testimony did not constitute reversible error; that the jury reached a just conclusion and that there was no miscarriage of justice.