Epitomized Opinion
This was an action for personal injuries. Plaintiff claimed that she suffered injuries to her person •and automobile by being struck by one of the railway company’s street (Tars. The defendant filed a general denial, and pleaded contributory negligence, in that the plaintiff was in violation of a city ordinance in using her car without tail light. Verdict was rendered for the defendant. The plaintiff prosecuted error upon a bill of exceptions purporting to show a part of the testimony only. In one of the special instructions it appeared that one of the issues was whether the plaintiff was so' under the influence of intoxicants that she did not exercise ordinary care. The case was tried before Judge Phillips of the Common Pleas Court of Cuyahoga county . In sustaining the verdict, ■ the Court of Appeals held:
1. That the instruction on the question as to whether the plaintiff was intoxicated at the time was proper.
2. As all the testimony is not before, the reviewing-court, the court is bound to assume that there is some testimony tending to show that the plaintiff was in the condition suggested by the instruction.