This is a proceeding in error from the court of common pleas of Hamilton county, Ohio, wherein judgment was rendered for the defendant, Ralph R. Gray.
The plaintiff in error, May Woodward, accompanied by a Mr. Mobley, on the 10th of June, 1930, at about 8:30 p.m., was walking northwardly on the west side of Central Parkway, in the city of Cincinnati, Ohio. Immediately preceding them, walking on the sidewalk, were Mrs. Mobley and the two small children of the plaintiff in error. At some point south of Elder street, Mrs. Mobley and the children crossed to the east side of Central Parkway, a thoroughfare sixty feet in width at that point. The youngest child, about two and a half years old, whom Mrs. Mobley had been carrying in her arms, was placed upon the sidewalk, and while its clothes were being arranged, suddenly turned and darted back, westwardly across Central Parkway. Mrs. Mobley followed it. The mother of the child, plaintiff in error, at the same time ran toward it from the west side of the street. Just immediately prior to this the traffic lights at Liberty street, one square south of Elder street, turned green, and the defendant in error, who, with other automobile drivers, had been *Page 179 waiting for the signal, started his automobile northwardly on Central Parkway. He held a position, just east of the center of the street. As his car moved forward he saw the child run out from his right — from the east curb of Central Parkway — and closely observing it, while slackening his speed, he swerved to the left and west and collided with the plaintiff in error, who was rushing to the assistance of her child from the left, or west side of Central Parkway. The plaintiff in error was knocked down and severely injured. The defendant in error stopped his car almost instantly, in fact so sharply that an automobile following it in the rear almost collided with it, and only averted this by sharply swerving to the right, thus placing the child directly in the path of this automobile. The driver stated that he thought he had run down the child, although in reality it was only hidden from his view by the front portion of his automobile.
The jury returned a verdict for the defendant in error. There was ample evidence to warrant them in doing so.
The first complaint of plaintiff in error involves the giving of charge No. 5, at the request of defendant in error. It is as follows: "I charge you that if you find from the evidence in this case that the injury to the plaintiff, May Woodward, was accidental and happened without fault on the part of the defendant, then the plaintiff cannot recover, and your verdict must be for the defendant."
The chief objection is to the use of the word "accidental." While we do not approve the use of this word, taking the entire charge a correct rule of law is stated, for in order that the verdict of the jury should be for the defendant in error it was necessary whatever else they found that they should find that the "injury to the plaintiff" "happened without fault on the part of the defendant" in the court below. The use of the word "and" makes such construction of *Page 180 the charge necessary. The giving of this charge, therefore, did not constitute prejudicial error.
It is also contended that the court erred in giving charge No. 6, at the request of defendant in error:
"I charge you that where one without fault of his own, is placed in a position of great mental stress or sudden emergency, the same degree of judgment and care is not required of him as is required of one who is acting under normal conditions. The test to be applied is whether or not the person in such a position of great mental stress or sudden emergency, did, or attempted to do, what a reasonably prudent person would have done under the same or similar circumstances.
"If, therefore, you find from the evidence in this case that the defendant without fault of his own, was placed in a position of great mental stress or sudden emergency, and that while in such position he did or attempted to do what any reasonably prudent person would have done under the same or similar circumstances, then he was not negligent."
It is our opinion that this charge is applicable to the facts in this case, that it was not misleading, and states a correct principle of law. The correct test is applied as to whether the defendant in error did what a reasonably prudent person would have done "under the same or similar circumstances."
We come to the second proposition in the brief of plaintiff in error, which we have purposely taken out of order, having previously disposed of the last proposition affecting the weight of the evidence. The following language of the general charge is criticized:
"Now in this case the burden of proof is upon the plaintiff. The plaintiff, in order to prevail, is required to prove her case by a preponderance of evidence."
"To hold the defendant responsible in damages for any injury plaintiff sustained at that time, it must be shown by the preponderance of the evidence — *Page 181
"1. That the child was in danger of being injured by the automobile of the defendant as it was traveling on the street, and that such danger to said child was caused or created by the negligence of the defendant;
"2. That in making the effort to rescue the child the plaintiff was not guilty of contributory negligence as that will be defined."
The court later in the charge stated: "These are the questions of fact which it will be your duty to determine from the evidence. If you find that the child was exposed to peril such as referred to, and that such being exposed to peril was caused by the negligent act of the defendant, you will then inquire whether the plaintiff, in attempting to cross the street to rescue the child, was guilty of contributory negligence. The law will not impute negligence to an effort to preserve human life, unless made under such circumstances as to constitute rashness in the judgment of prudent persons. If the plaintiff believed, and had good cause to believe, that she could save the life of the child without serious injury to herself, the law will not impute to her blame for making the effort."
No request was made by plaintiff in error for further statement upon the duty of defendant in error as to the burden of proving contributory negligence.
The court further stated in the general charge: "Negligence must be proved by the evidence. It is not to be inferred, because there was an accident, that there was negligence, or that the plaintiff is entitled to recover. The law presumes at the outset that there was no negligence, and that presumption continues until overcome by evidence to the contrary."
The court should have charged definitely that the duty of proving contributory negligence was upon the defendant in error, and that he was entitled to the benefit of all the evidence in the case in carrying this burden. The effect of the specific part of the charge *Page 182 criticized is to place upon the plaintiff in error the duty of negativing contributory negligence on her part.
It is urged that where the plaintiff jeopardizes her person or life, even to save her child, she assumes this burden. We consider no such exception to exist. The court erroneously placed this burden upon the plaintiff in error.
Taking the other sections of the charge quoted, we also consider that the effect of this error was somewhat lessened, but the error remains, and were it not for the fact that we have found no error prejudicial to the plaintiff in error in the issue of negligence, we should be compelled to reverse the judgment for prejudicial error on the issue of contributory negligence.
The rule, however, is too well settled that where a case presents issues both of negligence and contributory negligence, and error intervenes in only one of these, a verdict for the defendant will not be disturbed. This case peculiarly illustrates the efficacy of this rule, in that the evidence justified the jury in finding the defendant in error not guilty of negligence.
Finding, therefore, the issue of negligence of the defendant in error free from error prejudicial to the plaintiff in error, we affirm the judgment of the court of common pleas.
Judgment affirmed.
HAMILTON and CUSHING, JJ., concur.
ON APPLICATION for rehearing.