In this case, the trial was had in the Municipal Court of Cincinnati without a jury. Judgment was rendered by that court for the defendant. An appeal on questions of law was taken directly to this court. No separate findings of fact or law were made by the trial court, and, as far as the record shows, none was requested. The evidence taken at the trial is presented in a narrative bill of exceptions which purports to contain all the evidence.
The plaintiff in the case is the owner of an automobile driven by another person with her consent. The case, therefore, presents the situation of an automobile bailment, eliminating the issue of contributory negligence against the plaintiff owner, bailor. It does not, however, eliminate the question of proximate cause. The pertinent facts are that the driver of the automobile drove the vehicle out of his driveway onto a public thoroughfare, where it was struck by an automobile driven by the defendant. The view from the direction from which the defendant's automobile was approaching was impaired by a stone pillar and shrubbery. There is evidence that the driver of the plaintiff's automobile stopped it when two feet out in the street. The conflict in the evidence is concerned with the distance between the two vehicles when the plaintiff's automobile entered the thoroughfare. Obviously, if the plaintiff's automobile was stopped in the direct path of the defendant's vehicle at such a time that the driver of such latter vehicle could not with reasonable care have brought it to a stop, then the defendant is not responsible for injury which may have occurred. A question is here presented as to what was the proximate cause of the damage. Another question is, was the defendant negligent?
Much of the complaint of the plaintiff is concerned with the failure of the trial court to grant the request of the plaintiff to examine a written signed statement of a witness for the plaintiff, *Page 163 used by the defendant in questioning such witness, apparently in an attempt to impeach her testimony. An insurance adjuster who took such statement from the witness was also examined at length by the defendant as to the contents of such statement. The trial court committed error in refusing the request of the plaintiff for an examination of the document. Was such error so prejudicial as to require a reversal of the judgment in favor of the defendant? No profert appears in the record of what the witness said in her written statement, and her answers as to what she said therein do not indicate that it contained statements to the advantage of the plaintiff. The prejudice to the plaintiff is, therefore, in the realm of speculation. The error did not justify a reversal for error prejudicial to plaintiff.
The bailor-bailee rule involving negligence is, in many cases, one which, when strictly applied, is of such a nature as to result in injustice. Unless such rule is clearly applicable such injustice should be avoided.
For the reasons that the judgment of the trial court is not defined by special findings, and that there is no profert in therecord showing that the answers given by the witness on the stand were the same as those in the statement given the insurance adjuster, the judgment of the trial court should be affirmed.